Court No. - 79
Case :- CRIMINAL APPEAL No. - 7536 of 2018 Appellant :- Kamlesh And 3 Ors.
Respondent :- State Of U.P.
Counsel for Appellant :- Narendra Kumar Singh,Shailendra Singh Rathore Counsel for Respondent :- G.A.
Hon'ble Ram Krishna Gautam,J.
1. Heard on the bail application moved by convict appellants namely Kamlesh, Guddu, Raj Bahadur and Dharmendra.
2. Learned counsel for the convict- appellants argued that it was a cross case of Case Crime No. 1018A of 2011 which was got registered, subsequent to registration of Case Crime No. 1018 of 2011, which was lodged upon the report of Sarvendra Singh, son of convict- appellant against deceased, in which investigation resulted submission of charge-sheet for offence punishable under Section 304 IPC against Munnu Singh. Whereas accusation against other named accused Kamlesh, Guddu, Raj Bahadur and Dharmendra were not substantiated. Hence, report under Section 169 of Cr. P.C. was against them. Munnu Singh was charge-sheeted of offence punishable under Section 304 IPC for which there was committal to court of Sessions and charge of offence punishable under Section 304 IPC; was levelled by Sessions Court. The same was read over and explained to accused persons. They pleaded not guilty, with prayer for trial. P.W.-1 was examined. Thereafter application under Section 319 Cr.P.C. was moved, which was opposed. But was allowed and Kamlesh, Guddu, Raj Bahadur and Dharmendra Singh were summoned for offence punishable under Section 304 IPC. Trial concluded with conviction for above offence for which sentence of ten years rigorous imprisonment with fine for Rs. 20,000/-, each and in default two years additional imprisonment was awarded, with a direction for adjustment of previous imprisonment, if any, in this case crime number. Convict-appellant was in jail for about four months during trial then after he was enlarged on bail and remained on bail till judgment of conviction, dated 29.11.2018. Since, then he is in jail, i.e., for more then about one year. The case, registered against present prosecution side, was closed, because of fact that person who had given firearm shot resulting death of son of convict Munnu Singh was himself died, in above occurrence, in which deceased himself had given assault by spade over him, hence, charge-sheet only in present case crime number was submitted. P.W. 1, informant, was not present on spot. Rather she used to reside at Fatehgarh and was summoned for getting case registered, that is why, this case was registered with delay and subsequent to registration of Case Crime No. 1018 of 2011 by Sarvendra Singh. P.W. 2 was examined with permission of court because she was not witness of occurrence. Two witnesses, who were said to be eye witnesses account, have been examined as D.W. 1 and D.W. 2 and two witnesses are of fact from prosecution side. They are at equal footing and those defence witnesses have proved the sequence of occurrence. Even in First Informant Report, informant has written that five persons were armed with Tamancha with spade (Fawada) and one of them did firearm shot and this resulted death of Ankit, one of accused. The accused side did assault in furtherance of their common intention of unlawful assembly, armed with deadly weapons, resulting death of deceased. It was a planed murder. But Investigating Officer- P.W.-3, who investigated both of above case crime number, has specifically said in his testimony that prosecution witnesses, examined under Section 161 Cr.P.C., have not supported prosecution case for those accused persons who were not chargesheeted and charge-sheet was filed against Munnu Singh only, because he gave assault after seeing death of his grandson, caused by deceased, by firearm shot. Meaning thereby the statement of Investigating Officer P.W.-3 is of this fact that it was an act of convict Munnu Singh, after seeing the death of his grandson Ankit, caused by firearm shot, given by deceased, resulting his death, and that is why trial court has convicted and sentenced for offence of culpable homicide not amounting murder i.e.punishable under Section 304 IPC with above sentence. It was not held to be a case of murder, as was written in First Information Report, nor an assault in furtherance of common object of murder by members of unlawfully assembly, armed with Tamchha and spade there in the field and assaulting in furtherance of their object, in which six named accused persons were known and many others were unknown. It was a dispute in between both sides, at field, resulting this occurrence, with no pre meditation or preparation or motive or criminal antecedents. Appeal has been admitted and there is every hope of its success. But no hope of likelihood of early hearing of this appeal, because of heavy docket of this Court. Hence, bail during appeal has been prayed for.
3. Learned private counsel for informant as well as learned AGA has vehemently opposed this bail application with this contention that the injuries found on the person of deceased, written in the autopsy examination report and proved by prosecution witnesses and medical officer, were so fatal and grievous and of so dimension that it was a brutal assault and may not be caused by one person at all, rather it was assaulted by those named accused persons with others who assembled in the field and were with intention to kill deceased for which firearm shot was made by Kamlesh resulting injuries to Ankit, followed by instant death of Ankit, for which a false case got registered as cross case. But assault by accused persons were over deceased resulting seven injuries written in autopsy examination report, resulting in death of deceased, who too was of old age. Hence, release on bail will frustrate end of justice and there is an appeal for enhancement of sentence, hence bail be rejected.
4. Admittedly, there is no criminal antecedent of convict appellants. This occurrence was at the field, that is not at the house or door or in front of house of deceased. PW- 1 and PW-2 have categorically said that they were inside their house and rushed on spot after listening hue and cry and when they reached on spot they saw the occurrence which was going on. Thus both of them are not the witnesses of initiation of occurrence. The death of two persons one of each side is there. Investigation Officer PW- 3 has said in his investigation the reason for filing of final report against those named accused persons other than convict-Munnu Singh. Exercise of right of self defence has been pleaded in FIR as well as statement recorded under Section 313 Cr.P.C. and written statement given under Section 233 Cr.P.C. Whether, it was in exercise of right of private defence or was under bona fide exercise of same? Was considered by trial court judge and the conviction for culpable homicide, not to amounting murder, punishable under Section 304 IPC, was there with above sentence.
5. Under all above facts and circumstances, but without commenting on merits of appeal a case for bail during appeal is there.
6. Let convict-appellants Kamlesh, Guddu, Raj Bahadur and Dharmendra be released on bail in Sessions Trial No. 77 of 2012, arising out of Case Crime No. 1018A of 2011, under Section 304 I.P.C. P.S. Mohamdabad, District Farrukhabad, on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of trial Judge concerned subject to undertaking that they will cooperate in the early disposal of this appeal.
7. Fine shall be deposited before the trial court by convict-appellants within a month after release from the jail.
8. After filling and acceptance of bail bonds, the same shall be transmitted to this Court and a photocopy of same be kept by trial Judge for record.
9. List the appeal for hearing on merit after four weeks.
Order Date :- 26.7.2019 Kamarjahan