Court No. - 32
Case :- CRIMINAL APPEAL No. - 4622 of 2016 Appellant :- Kali Charan Gupta & Another Respondent :- State Of U.P.
Counsel for Appellant :- Sanjay Kumar Jain,Jitendra Prasad Mishra Counsel for Respondent :- G.A.
Hon'ble Shashi Kant Gupta,J. Hon'ble Bachchoo Lal,J.
Counter affidavit filed on behalf of State today is taken on record.
Heard Sri Jitendra Prasad Mishra, Sri Rajat Kumar Patel and Sri Sanjay Kumar Jain, learned counsel for the applicants.
Learned counsel for the applicants submits that applicants are innocent and they have been falsely implicated in the present case. It is further submitted that the incident had occurred at 10 p.m. on 29.8.2004 and the F.I.R. was lodged on 30.8.2004 at 12.55 p.m. and there is no explanation regarding delay in lodging the FIR, althoug the police station was 4 k.m. from the place of occurrence. It is further submitted that in the F.I.R. three witnesses, namely, Suresh Chandra (first informant and cousin of the deceased), Shiv Narain (brotheri-in-law of the deceased) and Arvind Gupta (causin of the deceased) were introduced. Arvind was not produced by the prosecution but he was produced by the defence and he has not supported the prosecution version. He deposed that on the intervening night of 29/30.8.2004 he was present in his village. He had not gone to Ghiror for shopping on 29.8.2004. On 30.8.2004, in the morning, he was told that Neeraj Gupta has been killed and his dead body is lying about 3 km away from the village. He also said that he does not know who killed the deceased Neeraj Gupta. It is further submitted that Shiv Narain in his cross- examination stated that he had gone to Ghiror for shopping and he further stated that Umesh of Ghiror had dropped him at Bhogapur on his motorcycle. Thus, there was contradiction in his statement in his testimony. It is further submitted that the first informant in the FIR mentioned that he saw the incident in the light of torch but the prosecution did not produced the torch. It is further stated that as per the postmortem report the doctor opined that death was caused due to asphyxia as a result of anti- mortem strangulation and he further stated that injury no.1 can be caused by pressing 'lathi' on the neck and it is possible to be caused by 3 cm wide 'lathi'. In the F.I.R. nothing was said that any of the accused persons were carrying lathi or pressing lathi at the neck of the deceased. It is furthr submitted that Suresh Chandra (the first informant) had enmity with applicant Kali Charan because Kali Charan had earlier lodged an F.I.R. under section 307 IPC against Suresh Chandra.
Learned counsel for the applicants submits that the incident occurred in the night and infact no one had seen the incident and in the morning the dead body was recovered and since there was enmity between Kali Charan and the first informant, the applicant have been falsely implicated in the present case. It is further stated that the applicants have neither any enmity with the deceased nor they have any motive to kill the deceased. The applicants were on bail during the trial and they have not misused the liberty of bail granted to them. The applicants are in jail since 29.8.2016.
Per contra, learned AGA opposed the prayer for bail and supported the trial court's judgment.
Having given our thoughtful consideration to the submissions of the learned counsel for the parties, without expressing any opinion on the merits of the case, we are of the opinion that the appellants have made out a case for bail.
Let the appellants Kali Charan Gupta and Santosh Kumar Gupta convicted and sentenced in S.T. No. 318 of 2004 (State Vs. Kali Charan Gupta and another), arising out of Case Crime No. 222 of 2004, under Section 302 I.P.C. police station Ghiror, District Mainpuri be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned. The photocopies of the bonds so furnished be transmitted to this Court to be kept on record of the appeal.
On deposit of 50% of fine imposed on the appellants within a period of one month, the remaining fine shall remain stayed during pendency of the appeal.
The bail application is allowed.
Office is directed to prepare paper books and list this appeal for hearing in due course.
Order Date :- 30.5.2018 Manish Tripathi