JUDGMENT Imtiyaz Murtaza, J.
1. This is an application for bail on behalf of Kalika Yadav and Paras Nath Yadav who have been convicted by sessions Judge Jaunpur in S.T. No. 214 of 1992, under Sections 148 I.P.C. and sentenced to undergo 3 years R.I., 302/149 I.P.C. for life and fine of Rs. 30007- and in default of payment of fine 4 months imprisonment, 307/149 I.P.C for 10 years R.I. and fine of Rs. 2000/- and in default of fine 2 months imprisonment, under Section 380 I.P.C. 7 years R.I. and fine of Rs. 2000/- and in default of payment of fine 2 months imprisonment.
2. The brief facts of the case which gave rise to this appeal are that on 13.12.1990 at about 6.30 P.M. Deep Narayan Singh @ Bhallar Singh, Ram Murti Singh @ Nanhoo Singh were sitting inside their Maraha. Madhuri Singh, Smt. Vimla Devi, Smt. Vidya Singh, Manish Kumar Singh, Aruna Singh, Rajendra Kumari Singh and Hemant Kumar Bannerji were sitting in the Varandah in front of the house of the informant Bhoopesh Kumar Singh, who was delivering fodder to the cattle. At that time, 12-13 persons including appellants reached there armed with Kattas and Tamanchas. The unidentified persons were carrying Kattas, Grenade and torches and one of the unidentified person was carrying a gun. It is alleged that Kalika Yadav enquired about Manish and Deep Narayan Singh @ Bhallar Singh replied that he did not know as to where Manish was. Kalika challenged and said that they came to take revenge of Maarpit of Harinath Yadav at St. Thomas College and all their family members are to be killed. Paras Nath and Kalika fired at Deep Narayan Singh by Tamancha and one of the assailants threw a grenade at Deep Narayan Singh who received injuries and fell down on the spot. Indra Prakash and Keshav Prasad fired at Ram Murti Singh who after sustaining injuries also fell down. The ladies of the house and Manish Kumar Singh (P.W. 2) raised alarm. All the assailants started throwing grenades and fired from Kattas. One of the assailants fired at Hemant Kumar Bannerji who fell down after sustaining injuries. The assailants entered into the house and took away a single barrel gun and one double barrel gun and one mouser pistol alongwith the cartridges and also took away one VCR. On alarm being raised people of the vicinity reached there but the assailants threw grenadas and fired. The assailants left the spot and went towards South-West of the house of informant Bhoopesh Kumar Singh (P.W. 1). The report of the occurrence was registered at Case Crime No. 469 of 1990 under Sections 147, 148, 149, 307, 452, 395, 397 I.P.C. at P.S. Shahganj on 13.12.1990 at 8.30 P.M. After the investigation charge-sheet was submitted and case was committed to the court of Sessions.
3. In support of the case prosecution had examined 11 witnesses and P.W. 1 Bhoopesh Kumar Singh and P.W. 2 Manish Kumar Singh were witnesses of fact. The Sessions Judge after considering the evidence on record convicted the appellants as aforesaid.
4. The applicants alongwith two other persons had challenged their conviction and this Court on 28.2.2001 admitted the appeal and released the applicants and two other appellants on bail, the order of this Court reads as under:
Admit Issue Notice.
Shri H.N. Singh has put in appearance on behalf of complainant.
Learned Counsel for the appellants submitted that apart from the fact that all the appellants were on bail during trial and they never misused the same, the appellants have every hope of their success in the appeal in as much as a grave doubt is created from the evidence on record that dacoity with murder was committed by unknown persons and the appellants have been nominated on account of previous enmity with the first informant and his family members. The court has also perused the judgment of the trial court.
Pending appeal, appellants Kalika Yada, Indra Prakash, Keshwa Prasad alias Kesha and Paras Nath Yadav inoled in session trial No. 214 of 1992 shall be released on bail on each of them executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the trial court.
5. The aforementioned order was challenged before the Apex Court in Criminal Appeal No. 1345 of 2002 and the Apex Court on 25.1.2006 had set aside the order granting bail to the appellants. The order of the Apex Court reads as under;
This appeal has been filed by the complainant against the judgment and order dated 28.2.2001 of the High Court of Judicature at Allahabad granting bail in respect of the accused Kalika Yadav, Indra Prakash, Keshav Prasad alias Keshav and Paras Nath Yadav who were convicted by the District and Sessions Judge under Section 148 read with Section 302/149 and Section 307/149 I.P.C. The High Court by the impugned order admitted the appeal and issued notice. It is however, contended by the appellant that the High Court released the accused on bail without hearing the State and complainant party. This contention has been contested by the counsel for respondent accused.
Ex facie it appears from the order itself that no State counsel has been heard before granting of bail by the High Court. Although it is stated that one H.S. Singh has put in appearance on behalf of the respondent. The order does not show that he has been heard. Putting in appearance on behalf of the party and hearing the counsel are two different things. A party may file a Vakalatnama through an Advocate that is called putting in appearance but when the question for consideration of the petitioner/case of the parties is considered, the court must invariably hear the arguments/submissions, particularly when the accused were convicted in a grave offence under Section 302 I.P.C. This has not been done in the instant case. It is now well settled principle of law that one of the considerations of bail in non-bailable offences is the gravity of the offence which has to be considered. Having regard to the gravity, it was incumbent on the part of the learned Single Judge to have heard the state counsel and considered the bail application. It has not been done in the instant case. Granting of bail is no doubt the discretionary power of the court, but such discretion must be exercised judiciously and not arbitrarily or capriciously.
For the reasons aforesaid we set aside the order of the High Court dated 28.2.2001 with regard to the granting of bail. The bail bonds and sureties stand cancelled. The matter shall now be placed before the Division Bench of the High Court for considering the appeal of the accused afresh after issuing notice to the complainant and the State Counsel for hearing. The Division Bench shall reconsider the bail application within a period of three months from today. The original records shall be sent to the High Court forthwith.
The appeal is allowed.
6. Accordingly, this application has come up before this Bench under the order of Hon'ble The Chief Justice dated 18.5.2006.
7. We have heard Shri V.P. Srivastava, Sr. Advocate, Shri Dilip Gupta, Advocate for the applicants and Shri H.N. Singh for the complainant and A.G.A. for the State.
8. The counsel for the applicants submitted that there is conflict in direct and medical evidence, no independent witness has been examined in this case, the prosecution has examined only P.W. 1 Bhupesh and P.W. 2 Manish Kumar Singh in order to support its case. According to the prosecution case several other persons have sustained injuries in the occurrence but only one injured namely, P.W. 2 Manish Kumar Singh was examined. It is further contended that investigating officer had also found during investigation that some other houses were also looted in the occurrence. The appellants are falsely implicated in this case on account of previous enmity. It is further submitted that statement of P.W. 2 was not recorded under Section 161 Cr.P.C. nor it was supplied to the accused and there is conflict in direct and medical evidence.
9. On the contrary, counsel for the complainant and A.G.A. submitted that occurrence took place at 6.30 p.m. and report of the occurrence was promptly lodged at 8 p.m. and distance of the police station was 3 kms. Three persons have lost their lives and several persons had also sustained injuries. The eye witnesses have specified specific role to the accused and it is further submitted that eye witnesses account are fully corroborated by the medical evidence.
10. We have considered the submission of the learned Counsel for the appellants and perused the order of Sessions Judge.
11. Section 389 of the Code deals with the suspension or execution of sentence pending the appeal and release of the appellant on bail. The Apex Court in the case of Vijay Kumar v. Narendra and Ors. reported in (2003) SCC Crl. 1195 and Ramji Prasad v. R.K. Jaiswal and Anr. reported in (2003) SCC Crl. 1197 that in a case involving conviction under Section 302 I.P.C. it is only in exceptional cases for the benefit suspension of sentence can be granted. The court should consider the relevant factors like the nature of the accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of the murder.
12. The Sessions Judge after detailed discussion of evidence on record had recorded the findings of conviction. We have also perused the judgment and the Sessions Judge has held that accused had a motive for the commission of the crime and their participation was supported by the evidence on record, the first information report was promptly lodged, the report discloses the names of the accused with direct physical acts specific in nature in commission of the crime. Oral testimony of eye-witnesses is totally consistent on substantial points of manner and mode of occurrence and the nature of weapons used in commission of the crimes with the results of medical evidence. The Sessions Judge had also relied upon the testimony of P.W. 2 Manish Kumar, whose 161 Cr.P.C. statement was not recorded and held that his testimony is free from infirmities and it is substantially corroborated by the oral testimony of P.W. 1 Bhupesh Kumar Singh. In our opinion the Sessions Judge had rightly relied upon his testimony who was an injured witness and his presence can not be doubted at the time of occurrence. The Sessions Judge after considering the evidence on record did not find it a case of dacoity and convicted the appellants under Section 307 I.P.C.
13. In this occurrence three persons have lost their lives and several persons have sustained injuries. In our opinion, considering the gravity of the offence and evidence on record and also the findings recorded by the trial court, it is not fit case for grant of bail
14. The bail application is hereby rejected.
15. After the cancellation of the bail, two appellants did not surrender and they did not move bail application nor any one appeared on their behalf. Therefore, we direct the Chief Judicial Magistrate, Jaunpur to take all coercive steps for the arrest of appellants Indra Prakash and Keshav Prasad and submit compliance report within three weeks to this Court. The paper book of the case is ready and it is directed that this appeal be listed for final hearing in the month of October, 2006 before the appropriate Bench.