Court No. - 64
Case :- CRIMINAL APPEAL No. - 5110 of 2021 Appellant :- Vishal Respondent :- State of U.P. and Another Counsel for Appellant :- Ravikant Shukla Counsel for Respondent :- G.A,Dewarshi Kumar Rai
Hon'ble Saumitra Dayal Singh,J.
1. On the last date, following order has been passed on the request of learned counsel for the informant:-
"Issue notice to respondent no.2 returnable at an early date by fixing 09.12.2021, as fresh. Put up this case on 09.12.2021, as fresh.
In the meanwhile, respondents may file counter affidavits."
2. Today, again, time was sought by learned counsel for the informant. The Court was inclined to grant time till 23.12.2021 but learned counsel for the informant insists that time may be granted till January 2022. That request has been rejected. Accordingly, the matter has been proceeded.
3. Heard Shri Ravikant Shukla, learned counsel for the appellant; Shri Ashwini Prakash Tripathi, learned AGA for the State and; Shri Dewarshi Kumar Rai, learned counsel for the informant.
4. Learned counsel for the appellant submits, against the FIR lodged on 19.2.2021, the appellant is in confinement since 20.2.2021; the appellant claims to have cooperated in the investigation. In any case he is not shown to have unduly evaded arrest; the appellant has no criminal history; charge-sheet has already been submitted yet, trial has not commenced. Therefore, there is no hope of early conclusion of the trial; on prima facie basis, for the purpose of grant of bail, learned counsel for the applicant submits, the FIR was lodged by brother of one of the deceased, who claimed to be an eye-witness. Real implication came in statement of the first informant which has been recorded during investigation. That has not been corroborated by the wife of the deceased who also claims to have reached the place of occurrence. It has further been submitted that the co- accused Deepu Nishad who was named in the FIR and against whom similar allegations of assault with brick has been made has already been enlarged on bail by this Court in Criminal Appeal No. 2621 of 2021.
5. On the other hand, learned AGA states, multiple injuries have been received by two deceased persons. He has highlighted the fact that there are different type of injuries recorded in the post-mortem reports indicating assault by a group of persons with different weapons. Also, it has been further submitted, there is no gross inconsistency as may create a basic doubt in the prosecution story. Thus, no discretion may be exercised in favour of the appellant.
6. Having heard learned counsel for the parties and having perused the record, though the appellant was not named in the FIR, there is a mention of two other co-accused persons. Occurrence is of 11'o clock in the night whereas FIR was lodged within an hour therefrom. In that context, no excessive presumption may be drawn in favour of the appellant. The applicant was named as an accused person in the statements recorded during the investigation. As to the role assignment, Shiv Kumar (brother of the deceased) claimed to have reached the place of occurrence and witnessed the assault. He has described the appellant as having caused injuries with a brick. Again, on prima facie basis, at present, post- mortem report cannot be read to exclude any role of the present appellant in the context of the allegations made in the statement recorded during investigation. The role of the co-accused Deepu Nishad may remain different as even the first informant in his statement recorded, ascribed the role of exhortation to the said co-accused person. Aarti, the wife of the deceased has also ascribed the role of assault to the present appellant.
7. Accordingly, the present appeal is dismissed.
Order Date :- 16.12.2021 Prakhar