Court No. - 45
Case :- CRIMINAL APPEAL No. - 2153 of 2021 Appellant :- Mahesh Chandra Yadav @ Munnu Respondent :- State of U.P.
Counsel for Appellant :- Santosh Kumar Shukla Counsel for Respondent :- G.A.
Hon'ble Pritinker Diwaker,J.
Hon'ble Mrs. Manju Rani Chauhan,J. Order on Bail Application
Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Sri Santosh Kumar Shukla, counsel for the appellant, Shri H.M.B. Sinha, learned AGA for the State-respondents and perused the record.
This appeal arises out of impugned judgement and order dated 26.03.2021 passed by Additional District & Sessions Judge, F.T.C.-I, Auraiya in Sessions Trial No.43 of 2006 arising out of Crime No. 188 of 2005, P.S. Phaphund, District Auraiya convicting the accused appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life with a fine of Rs. 10,000/-, in default thereof, to further undergo six months additional imprisonment.
In this application, the appellant seeks suspension of sentence and grant of bail.
Learned counsel for the appellant submits:
1. That the informant Jagdamba (P.W.-1) and Balram Singh (P.W.-2) have been examined as eye witnesses to the incident, however, the Court below has relied upon the statement of P.W.- 1 only.
2. That on the basis of same set of evidence, co-accused Suresh has been acquitted and case of present accused appellant is almost similar to that of Suresh, except the fact that from co- accused Suresh no weapon was seized and from the possession of the accused appellant Mahesh, one 315 bore country made pistol has been seized. It has been argued that from the spot seven empty cartridges of 12 bore were recovered, but Ballistic Expert Report does not show that those empty cartridges, which were seized, were fired from the weapon recovered from accused Mahesh. Likewise, there is no Ballistic Expert Report confirming the fact that the weapon allegedly seized from the possession of the appellant has been used in the commission of offence.
3. While referring to the post mortem report of the deceased, it has been argued that blackening has been found on the body of the deceased Har Govind and that would be because fire was made from a close range, whereas, as per site plan, firing was made from about 40 feets.
4. That no blood was found at the place of occurrence and a very improbable story has been put forth by the prosecution where it is alleged that after sustaining grievous injuries, both the deceased i.e. Har Govind and Neeraj, climbed up on a bamboo ladder about 10-11 feets. He submits that this is highly improbable and had it been so, blood must have been found on the floor as well as on the bamboo ladder.
5. That even the source of light is a disputed fact because as per the statement of Jagdamba (P.W.-1), he saw the incident on the basis of bulb, which was hanged on an electrical pole. He submits that normally in the villages, nobody would put such light from his own invertor and it would be otherwise where light is being directly taken from the pole.
6. That statement of Balram Singh (P.W.-2) has been recorded by the trial Court that he reached at the place of occurrence after the incident had taken place.
7. Lastly, it has been argued that during trial, the appellant was on bail except, for one year, the appeal is likely to take some time for its final disposal and therefore, the appellant be released on bail.
On the other hand, learned State counsel opposes the bail application and submitted that there is no reason for this Court to disbelieve the statement of Jagdamba (P.W.-1) who stood firm in his cross-examination and supported the prosecution case.
We have heard learned counsel for the parties.
Considering the totality of the case, in particular, the nature of evidence adduced by the prosecution, the fact that almost on the same set of facts, co-accused Suresh has been acquitted and further considering the facts that there is no definite evidence as to who caused the fatal blow to the deceased Har Govind and Neeraj, the appellant, during trial was on bail, is in jail since 26.03.2021 and the appeal may take some time for its final disposal, without further commenting on the merits of the case, we are inclined to release the appellant on bail.
Let appellant Mahesh Chandra Yadav @ Munnu convicted and sentenced in the above mentioned sessions trial be released on bail on furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned. This bail application is disposed of.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
List the appeal for final hearing in its due course.
In the meanwhile, Registry to prepare paper book, if not already prepared.
The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by representative/counsel of the appellant along with a self attested identity proof of the said person (s) (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 16.8.2021 SK/Monika Digitally signed by Justice Pritinker Diwaker Date: 2021.08.19 12:51:42 IST Reason: Document Owner Location: High Court of Judicature at Allahabad Digitally signed by Justice Manju Rani Chauhan Date: 2021.08.19 12:54:06 IST Reason: Document Owner Location: High Court of Judicature at Allahabad