Court No. - 46 Case :- CRIMINAL APPEAL No. - 7168 of 2009 Petitioner :- Pankaj Agnihotri Respondent :- State Of U.P. Petitioner Counsel :- Chandan Agarwal,Aditya Pandey,Satish Trivedi Respondent Counsel :- Govt. Advocate Hon'ble Sheo Kumar Singh,J.
Hon’ble Shyam Shankar Tiwari,J.
These two appeals have been filed by Pankaj Agnihotri and Mukul Dixit who
are appellants in both the appeals respectively.
Sri Satish Trivedi, learned senior advocate assisted by his colleague and Sri
P.N. Mishra leaned counsel assisted by his colleague argued in their
respective appeals i.e. Pankaj Agnitotri and Mukul Dixit and pressed for grant
of their bail at this stage.
Learned AGA is also heard.
Both the appellants were prosecuted for the offence punishable under sections
so mentioned in the judgement and they are to serve out th sentence so
provided.
Submission of Sri Trivedi in respect of the appellant Pankaj Agnihotri is that
he was not named in the F.I.R. and no motive has been attributed for him to
commit the offence and at the same time submission is that after surrender of
the appellant on 12-11-1990 identification parade was conducted on 17-1-91
i.e. after 67 days of the incident and out of four witnesses so produced in the
identification parade, two having identified, PW-10 was not examined.
Submission is that so far as the appellant Pankaj Agnihotri is concerned, his
case is distinguishable from that of the Mukul Dixit and he was on bail for
about 8 years having not misused liberty, is entitled discretion of this court
during the pendency of appeal.
Sri P.N. Mishra, senior advocate, so far the appellant Mukul Dixit to whom he
represents submitted that although the appellant is named in the F.I.R. and
motive is attributed but various factor so stated by the prosecution is not
believable.
Submission is that when the motive as stated is accepted to be correct then
there was no occasion for the deceased to go with the accused in the night
hours and it is thereby the theory that the witnesses also followed the
deceased and then they saw the accused alongwith unidentified accused
(Pankaj) committing the offence. At the same time no evidence is there that
the father and others tried to save the life of the deceased and therefore the
appellant is also entitled discretion of this court during the pendency of the
appeal.
In response to the aforesaid the learned government advocate made
submissions that it is a case where the commission of offence was seen by the
witness and specific motive is there, keeping in mind the number of injuries
so received by the deceased, presence of the witnesses cannot be said to be
not natural and thus on the facts the appellants are not entitled to be released
on bail.
After hearing the aforesaid arguments and on notice of facts, this court instead
of reiterating various facts/ factors as separately noted in respect to the
argument / claim of the two appellants, just again can notice that the appellant
Pankaj Agnihotri was not named in the first information report and
identification parade in his respect was conducted after about 67 days and out
of two witnesses, PW-10 was declared hostile by the Sessions Judge and other
witness was not even recalled to prove the identity of the appellant and at the
same time, no motive was attributed to him. At this stage it is also to be
noticed that one of the argument for the appellant Pankaj Agnihotri was that
his father happens to be teacher at this place and they all reside there
throughout and informant side was posted as Meter Reader at this place.
In respect of the accused appellant Mukul Dixit this court is to notice that
motive has been given and on the call by the accused although he was
permitted to go from house but the father having apprehension in the mind
followed him and in the manner it has been stated by the prosecution, he
gathered the facts. The improbability of the presence of witnesses as argued
can be a matter of notice /argument at the time of hearing of the matter.
Injuries are attributed to the named accused Mukul Dixit in view of the
motive so stated.
This has been repeatedly said by the Apex court that merely grant of bail
during trial and its no misuse cannot be a ground to enlarge the accused on
bail after conviction.
On the facts and totality of the circumstances this Court is of the view that the
appellant Pankaj Agnihotri is entitled to be enlarged on bail during the
pendency of the appeal.
Accordingly, let the appellant Pankaj Agnihotri involved in S.T. 422A of
2006 be enlarged on bail on his furnishing a personal bond and two sureties
each in the like amount to the satisfaction of the Court concerned. Realisation
of fine to the extent of 1/2 is stayed.
So far as Mukul Dixit is concerned he is not entitled to be released on bail.
His bail prayer is rejected.
Order Date :- 13.1.2010
skv