Court No. - 47
Case :- CRIMINAL APPEAL No. - 6103 of 2017 Appellant :- Kamlesh Pathak & Another Respondent :- State Of U.P.
Counsel for Appellant :- Amit Misra,Viresh Misra Counsel for Respondent :- G.A.,Moeez Uddin,Syed Imran Ibrahim
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
Criminal Misc. Bail Application No. 342408 of 2017.
Heard Sri Viresh Mishra, Senior counsel assisted by Sri Vimlesh Tripathi, counsel for the applicants/appellants, Sri Syed Imran Ibrahim and Sri Moeez Uddin, counsel for the respondent and A.G.A. for the State.
The application is for bail of the appellants, who have convicted under section 304(1) read with Section 34 I.P.C. and awarded rigorous imprisonment of 10 years and fine of Rs. 11,000/- each by the judgement dated 04.10.2017 by Sessions Judge Kaushambi in S.T. No.323 of 2012 ( State of U.P. Vs. Kamesh Pathak and another).
Counsel for the applicants/appellants submits that Kamlesh Pathak, applicant no.1 has served 26 months while Narendra Pathak, applicant no.2 has served 30 months in the present case. In order to prove the case, prosecution examined Kallu, P.W.2 and P.W.3 Rubi as eye witnesses of the case. As far as Kallu, P.W.2 is concerned, he has stated in his statement that when he reached on the spot, Nanku alias Imtiaz Khan was in unconscious position. After his coming on the spot, Rubi, P.W.3 reached. According to the counsel for the applicants/appellants, neither Kallu nor Rubi can be treated as eye witnesses of the case. So far as statement of deceased Nanku alias Imtiaz under section 161 Cr.P.C. is concerned,neither its extract was filed nor Investigating Officer proved the statement of Kallu, P.W.2 which was recorded by him,therefore, these evidences cannot be treated as documentary evidence. The applicants/appellants are liable to be acquitted from the charges as there is no material available on record.
In reply to the aforesaid arguments, counsel for the respondents submits that the statement of the injured Nanku alias Imtiaz Khan was recorded under section 161 Cr.P.C. and admission under section 162(2) Cr.P.C.for the purpose of dying declaration. Since Investigation Officer was not cross- examined on the point of recording statement of Nanku alias Imtiaz Khan it became admissible as part of case diary and as dying declaration. He has relied upon a judgement of Supreme Court in the case of Mannu Raja and others Vs. State of Madhya Pradesh in Criminal Appeal No. 227 of 1972 vide order dated 20.11.1975 as well as judgement of High Court of Delhi in the case of Tellu and others Vs. State in Criminal Appeal No.239 of 1987 decided on 31.07.1987.
We have considered the argument of the counsel for the applicants/appellants for the purpose of bail application.
Truthfulness of Statement of Rubi, P.W.3 can be tested on the basis statement of Kallu, P.W.2 which is evidence of prosecution itself. When Kallu reached on the spot, Nanku alias Imtiaz was unconscious position. After his coming on the spot, Rubi, P.W.3 reached. Thus, the presence of Rubi, P.W.2 is not proved by Kallu, who is eye witness of the case. So far as statement of Nanku alias Imtiaz Khan is concerned, statement is not corroborated with medical evidence. Inasmuch as he stated that Nanku alias Imtiaz Khan was assaulted by the accused causing injuries on the lower part of body also. Whether statement of deceased Nanku alias Imtiaz Khan is dying declaration or not is matter for further argument. The applicants/appellants have served 26 and 30 months respectively in jail. They are entitled for bail.
Let the appellants convicted in S.T. No.323 of 2012 under section 304(1) read with Section 34 I.P.C. P.S. Sarai Akil, District Kaushambi, be admitted to bail, subject to their executing a personal bond and furnishing two heavy sureties each in the like amount to the satisfaction of the court concerned.
Order Date :- 29.11.2018 aks .
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Court No. - 47
Case :- CRIMINAL APPEAL No. - 6103 of 2017 Appellant :- Kamlesh Pathak & Another Respondent :- State Of U.P.
Counsel for Appellant :- Amit Misra,Viresh Misra Counsel for Respondent :- G.A.,Moeez Uddin,Syed Imran Ibrahim
Hon'ble Ram Surat Ram (Maurya),J. Hon'ble Anil Kumar-IX,J.
List for hearing in the next cause list.
Order Date :- 29.11.2018 aks