Court No. - 51
Case :- CRIMINAL APPEAL No. - 4962 of 2013 Appellant :- Dinesh @ Sanwa Respondent :- State Of U.P.
Counsel for Appellant :- Apul Misra,Jayant Prakash Singh Counsel for Respondent :- Govt. Advocate,Mukhtar Alam
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Counter affidavit filed by the State is taken on record.
Heard Sri Manish Tiwari, learned counsel for the appellant, Sri Mukhtar Alam, learned counsel for the complainant and Sri Kumari Meena, learned AGA appearing for the State and perused the record.
This is the first bail application is being sought in appeal against the order of conviction.
The contention of the learned counsel for the appellant that it is a night incident. The first information report was lodged by the son of the deceased with the contention that all 4 persons arrived at a gate while the father of the appellant was shutting the door and all of them fired upon him. It has not been disputed that the deceased has received two wound injuries on the front chest and the other is on the back. It has been contended by the counsel for the appellant is that it is difficult to say in these circumstances that who exactly had caused injuries on the chest or on the back, especially on the back because the role of firing has been assigned to all 4 accused persons. The further contention is that after a period of four days, the father of the first informant expired in the hospital and in the meantime a statement under Section 161 has been recorded by the Investigating Officer and subsequently the same has been treated as dying declaration. The same has been duly perused by this Court and the Court finds that there are two different possible versions in the dying declaration itself. It is further been contended that other two accused namely Vishesh and Rajender have been granted bail by this Court. The further contention is that the appellant has already suffered incarceration for a period about 8 years with no previous criminal history. In these facts and circumstances, the appeal becomes arguable and there is likelihood of the appeal being allowed if it is heard on merit, however, there is no likelihood of the appeal being heard in near future.
Learned counsel for the complainant and learned AGA have very strongly opposed the bail application with the contention that specific role has been assigned to the appellant and also had a motive to commit the crime.
In view of the aforesaid facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view will not in any manner adversely affect the case of the prosecution.
The prayer for bail is granted. The bail application is allowed.
Let the applicant-appellant Dinesh @ Sanwa convicted and sentenced vide impugned judgment in connected S.T. Nos. 25 of 2011, 239 of 2011 and 407 of 2012, arising out of Case Crime No.
1398 of 2010, 1412 of 2010 and 1413 of 2010, under Section 452, 302/34 of IPC, PS. Rajabpur, District Jyotiba Phule Nagarbe released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned.
As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the concerned court to be kept on record.
The applicant - appellant is directed to deposit 50 per cent of the fine within a period of one month from the date of his release from jail. The realization of rest of the fine shall remain stayed during the pendency of the appeal. It is made clear that in case, the fine, as directed, is not deposited within the time as specified above, the same shall be recovered in accordance with law.
However, looking to the facts and circumstances of the case the hearing of the appeal is expedited under Chapter-VIII Rule 33A of the Rules of Court.
Let the paper book be prepared within two months from today and thereafter appeal be listed for hearing before appropriate Bench.
Order Date :- 13.9.2018 Ram Chander