Court No. - 74
Case :- CRIMINAL APPEAL No. - 2918 of 2020 Appellant :- Lekhraj And Another Respondent :- State Of U.P. And Anr Counsel for Appellant :- Ashish Dwivedi Counsel for Respondent :- G.A.
Hon'ble Pradeep Kumar Srivastava,J.
Heard learned counsel for the appellants and learned A.G.A. for the State.
As per office report dated 11.12.2020 and letter of the concerned Chief Judicial Magistrate dated 23.11.2020 notice has been sent on the respondent no.2 but none is present.
This appeal has been filed by the appellants Lekhraj and Mukesh against the order dated 17.08.2020 passed by Special Judge (SC/ST) Act, Bareilly in Bail Application No. 1164 of 2020 (Lekhraj and another Vs. State), arising out of Case Crime No. 74 of 2020, under Sections 307, 302 IPC and Section 3(2)V SC/ST Act, Police Station Fatehganj Purvi, District Bareilly by which bail plea of appellants have been rejected. Aggrieved by the rejection order, this appeal has been filed.
Submission of learned counsel for the appellants is that there is no specific allegation against the appellants and general role has been assigned. There is no public or eye witness of the alleged incident. There is old enmity between both sides and out of that enmity the appellants have been falsely implicated. The incident took place on 11.03.2020 and deceased died on 21.03.2020 but there is no dying declaration on record. The FIR has been lodged on 13.03.2020 as such there is delay in lodging the FIR and there is no reason for this delay. The FIR version is totally false but ignoring all this aspect, learned Special Judge rejected the bail application. There is apparent illegality in the impugned order and the same is liable to be set aside. It has been further pointed out that during the trial the informant PW 1 and injured PW-2 have been examined but informant has stated that he has not seen the incident whereas the injured witness PW-2 has stated that he has not seen the appellants causing injuries at the time of incident. The statements of both the witnesses are annexed with the supplementary affidavit which has been filed on 24.03.2021. Further submission is that the injured witnesses have been declared hostile by the prosecution, therefore, the impugned order is liable to be set aside. Further submission is that the appellants have no criminal history and there is also no possibility of their either fleeing away from the judicial process or tempering with the witnesses.
Learned A.G.A. has vehemently opposed and has submitted that on the basis of material available at that time, learned Special Judge passed legal order and there is no illegality in that order. The appeal got no force and is liable to be dismissed. Further submission is that the charge sheet has already been filed by the police after investigation.
Considered the submissions of both the sides. Apart from the fact that the two main witnesses who have been examined during the trial have not substantiated the FIR version nor have stated anything against the appellants, the FIR version is also not clear as to on whose information the informant named the accused persons. He is not an eye witness as he has stated. His statement during the trial he has not been able to disclose this fact in his statement also. Moreover, the maarpeet has been said to have been committed by lathi-danda and by butt of the country made pistol, bricks and stone. If the accused persons were having country made pistol with them and they were inclined to cause both of the deceased, there is no reason why they hit the deceased and injured by butt of the country made pistol. This fact dilutes the culpability on the part of the accused persons. The appellants are in jail from the last more than 14 months. As such there is apparent illegality and infirmity in the impugned order which is liable to be set aside.
In the result, appeal is allowed. The impugned order dated 17.08.2020 passed by Special Judge (SC/ST) Act, Bareilly is set aside.
Let the appellants Lekhraj and Mukesh be released on bail in Bail Application No.1164 of 2020 (Lekhraj and another Vs. State), arising out of Case Crime No. 74 of 2020, under Sections 307, 302 IPC and Section 3(2)V SC/ST Act, Police Station Fatehganj Purvi, District Bareilly on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicants-appellants will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that they are abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A IPC.
(ii) The applicants-appellants will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicants-appellants will not indulge in any unlawful activities.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicants-appellants to prison.
Order Date :- 30.7.2021 Mini