Court No. - 51
Case :- CRIMINAL APPEAL No. - 5489 of 2017 Appellant :- Rafique Respondent :- State Of U.P.
Counsel for Appellant :- Prakash Veer Tripathi,Gopal Swarup Chaturvedi Counsel for Respondent :- G.A.
Hon'ble Vipin Sinha,J. Hon'ble Ifaqat Ali Khan,J.
Heard Sri G.S. Chaturvedi, learned Senior Advocate assisted by Sri Prakash Veer Tripathi, learned counsel for the appellant and learned AGA and perused the record.
In the present case bail is being sought in appeal against the order of conviction.
We have perused the judgment and order dated 03.08.2017 passed by the trial court convicting the appellant.
The contention of the counsel for the appellant is that the appellant is in jail since 28.03.2015, further contention is that the first informant Rita was living in relationship with Irshad. It is the prosecution's own case that Rita was living as a live-in partner with Irshad. The incident is said to have taken place on 24.01.2015 at about 11:45 PM. The contention of the counsel for the appellant is that there was no reason for the accused- appellant to have burnt the child who is only 3 months old and without causing any injury or harm to Rita. Further contention is that Rita was the main person and was to the root of the matter and if there is any intention to do any harm the same would have been done to Rita and not to the minor child who is three years old. The further contention is that as per the opinion of doctor, the cause of death could not be ascertained and the body was kept in jar for DNA profiling. The further contention is that apart from the sole testimony of Rita there is no other evidence which may show the participation of the accused-appellant in the said crime. It is further being contended that Rita who claims to be the eye witness and who claims that she was present at the spot has not received any burn injury whatsoever, even though it has been contended that she was sleeping on the same cot along with the child. The next contention is that even the liquid which was thrown at the child has not been identified whether it was diesel, petrol and kerosene and thus, it has been contended that the appeal is arguable and is likely to be allowed if it is heard on merits, however there is no likelihood of the appeal being heard in the near future.
Learned A.G.A. has opposed the prayer for bail, however he has not disputed the aforesaid contention as made by the learned counsel for the appellant.
In view of the aforesaid facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out. However, the said prima facie view will not in any manner adversely affect the case of the prosecution.
The prayer for bail is granted. The bail application is allowed.
Let the applicant-appellant Rafique convicted and sentenced vide impugned judgment in S.T No. 79 of 2015 (State Vs. Irshad & others) arising out of Case Crime No. 74 of 2015 under Section 302/34, 323/34 of IPC, Police Station Kotwali Khailabad, District Sant Kabir Nagar, be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of court concerned.
As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the concerned court to be kept on record.
The applicant - appellant is directed to deposit 50 per cent of the fine within a period of one month from the date of his release from jail. The realization of rest of the fine shall remain stayed during the pendency of the appeal. It is made clear that in case, the fine, as directed, is not deposited within the time as specified above, the same shall be recovered in accordance with law.
However, looking to the facts and circumstances of the case the hearing of the appeal is expedited under Chapter-VIII Rule 33A of the Rules of Court.
Let the paper book be prepared within two months from today and thereafter appeal be listed for hearing before appropriate Bench Order Date :- 12.9.2018 Ram Chander