Court No. - 52
Case :- CRIMINAL APPEAL No. - 5421 of 2018 Appellant :- Radhey Shyam And 2 Others Respondent :- State Of U.P.
Counsel for Appellant :- Saurabh Sachan,Ashwani Kumar Sachan Counsel for Respondent :- G.A.,Satyendra Sharma
Hon'ble Rajul Bhargava,J.
Heard Sri A.K. Sachan, learned counsel for the appellant, Sri Satyendra Sharma, counsel for for the informant, learned AGA for the State and perused the record.
Admit. Summon the lower court's record.
The instant criminal appeals have been filed by applicants-appellants against the judgement and order dated 1.9.2018 passed by Additional Session Judge, court no. 6, District Shahjahanpur in S.T. No. 749 of 2002 arising out of Case Crime No. 22 of 2000, u/s 504, 323/34, 336/34 and section 304 Part II/34 IPC, P.S. Tilhar, District Shahjahanpur.
The submission of learned counsel for the applicants is that the court below has illegally convicted the appellants through it was a cross case; as per the prosecution case, on the date of incident it was raining day and there was some water logging in front of house of the appellants when they tried to clear it the first informant and deceased objected for the same whereupon the appellants armed with Lathi, Kanta and brickbats started assaulting the father of first informant and his brother Ramnath; learned counsel has further pointed out that neither the deceased nor injured has sustained injury by Kanta which was sharp edge weapon, all injuries caused by hard blunt object. Thereafter, prosecution has modulated its case that the appellants had inflicted injury by Kanta from its back side; it is stated that injured Radheshyam and Chhotu (since dead) and the first informant and others were also tried for cross case in which the court held them guilty u/s 323 IPC; it is argued that trial court without recording finding as to which party was an aggressor as the incident had taken place all of sudden and it appears that injury was caused by hurling brickbats from the both sides; prima facie no intention or knowledge can be inferred to constitute offence u/s 304(II) IPC; the appellants were on bail during trial; now they are in jail since since the date of conviction. There is no possibility of early disposal of the appeal due to heavy dockets.
Per contra learned counsel for the informant opposed the prayer for bail but could not dispute that there are injury from both sides and the incident had taken place all of sudden on a dispute over clearing of water jammed in drain.
In the facts of the case, without expressing anything on the merit of the case I am satisfied that a case for grant of bail to the applicants is made out. The bail applications are allowed.
Let the applicants-appellants Radhey Shyam, Ram Singh and Kalicharan convicted and sentenced in the aforesaid session trial, during the pendency of the appeals be released on bail subject to their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.
On acceptance of the bail bonds and personal bonds, the lower court shall transmit the photostat copies thereof to this Court for being kept on record of the instant criminal appeal.
The fine of Rs. 20,000/- each out of total fine awarded by the court below under the impugned judgement shall be deposited by the applicants- appellants before their release on bail and rest fine shall remain stayed. The compensation as awarded by the trial court shall be paid to the victim. List in due course for hearing.
Order Date :- 20.12.2018 Dhirendra/