Court No. - 48
Case :- CRIMINAL APPEAL No. - 5838 of 2011 Appellant :- Bhoop Ram Respondent :- State Of U.P.
Counsel for Appellant :- Pramod Kumar Sharma,Anil Srivastava Counsel for Respondent :- Govt. Advocate,Ajay Kumar
Hon'ble Karuna Nand Bajpayee,J. Hon'ble Ajit Singh,J.
Criminal Misc. Bail Application No. 299657 of 2011 Counter affidavit filed today is taken on record.
This is a bail application moved on behalf of the appellant in appeal seeking his release on bail who has been convicted and sentenced in Sessions Trial No. 119 of 2010 (State Vs. Bhoop Ram and another) arising out of Case Crime No. 1399 of 2009, u/s 302, 120B I.P.C., Police Station- Barkheda, District-Pilibhit.
The counsel for the appellant has tried to submit that the incident appears to have taken place in the heat of sudden provocation on the spur of the moment and there was no premeditated or pre-concerted plan. Emphasis was also laid upon the period of detention and it was submitted that the appellant is in jail since last 9 years and, therefore, for all these reasons the appellant may be released on bail.
Heard learned counsel for appellant and learned A.G.A. and also perused the record.
Ordinarily this Court tends to lean liberally in favour of the accused in matters of prolonged detention but the period of detention alone cannot be applied as a straight jacket formula in all cases regardless to the nature of crime, the gravity of offence, the pertaining circumstances and many other relevant factors. It transpires from the record that the appellant is the sole assailant who has shot the deceased in a middle of the chest as a result of which he died. The postmortem report lends clinching corroboration to the allegations made against the appellant, as the autopsy report shows gun shot wound in the middle of chest alongwith blackening around the wound. The internal examination showed the fracture of rib, the rupture of lungs and also the rupture of heart. There was no question for the deceased to survive with such injuries having been inflicted upon him. It is difficult to conceive that if there was no preconcert involved then how the assailant on the spur of the moment could pick out the fire arm and shoot at the deceased. There was no such evidence that he went to some other place to fetch the arm. Another disturbing feature will be found in this case is that the appellant is a previous convict and had already been convicted and sentenced for six years in another criminal case. In fact the evidence shows that the deceased had spent some money with regard to or to say on behalf of the appellant as both were having friendly terms and on the day of incident the deceased was asking for his money spent. There were some business also which was jointly done and in that connection also there appears to be some dispute regarding the payment of money that seems to be the background in which the incident took place. We also find it from the counter affidavit filed on behalf of the State that the appellant is having a criminal history also and not less than seven cases have been reportedly registered against him. He has been facing charges under different criminal offences from time to time and the criminal history also includes a case under Section 304 IPC.
Apart from the aforesaid, we find substance in the submission made by the learned A.G.A. that with an accused of such background with such criminal history, it does not appear to be a fit case to release on bail on the basis of detention period alone. Moreover, the lower court record has already been received and this Court is having all inclination to hear the appeal. The Court has infact offered to hear the appeal finally but the counsel at this stage appears to be reluctant to do so. The detention period alone in matters of such gravity cannot suffice to be a legitimate basis to release the appellant on bail on that ground alone especially in the background of the fact that this Court is having all inclination to decide the appeal finally and it is not a case where it may be said that there is no likelihood of this appeal being heard.
At any rate looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the appellant has not made out a case for bail. Therefore, the prayer for bail of appellant Bhoop Ram is rejected.
It may be clarified that the observation, if any, made in this order are strictly confined to the disposal of the best application and must not be construed to have any reflection on the ultimate merits of the case.
(Order on Appeal) Office is required to prepare the paper-book and list this appeal thereafter for final hearing in regular course.
Order Date :- 29.11.2018 Mini