Court No. - 25 Case :- CRIMINAL APPEAL No. - 1102 of 2010 Petitioner :- Munna Lal Respondent :- State Of U.P. Petitioner Counsel :- Krishna Kumar Singh,Nishar Ahmad Respondent Counsel :- Govt. Advocate; Case :- CRIMINAL APPEAL No. - 1481 of 2010 Petitioner :- Bhagauti Respondent :- State Of U.P. Petitioner Counsel :- Krishna Kumar Singh,Nisra Ahmad Respondent Counsel :- Govt. Advocate; Case :- CRIMINAL APPEAL No. - 1482 of 2010 Petitioner :- Rakesh Respondent :- State Of U.P. Petitioner Counsel :- Krishna Kumar Singh,Nisar Ahmad Respondent Counsel :- Govt. Advocate along with Case :- CRIMINAL APPEAL No. - 1144 of 2010 Petitioner :- Santosh Awasthi Respondent :- State Of U.P. Petitioner Counsel :- Krishna Kumar Singh Respondent Counsel :- Govt. Advocate Hon'ble Abdul Mateen,J.
Hon’ble Yogendra Kumar Sangal,J.
Heard Shri I. B. Singh, learned Senior Advocate appearing for the
appellants as well as learned Additional Government Advocate.
All four appeals arise out of one and the same judgment, as such, these
appeals are being taken up together for the purpose of consideration of
bail in pending appeal.
These appeals have been preferred by the appellants, namely, Munna
Lal, Bhagauti, Rakesh and Santosh Awasthi against judgement and
order dated 03.04.2010 passed by learned III Additional Sessions Judge,
Special Judge, Gangster Act, Gonda in Sessions Trial No. 219 of 2007
(arising out of Crime No. 264 of 2005, under Sections 148, 302/149.
506 (2) & 120-B IPC, police station Katra Bazar, districrt Gonda)
whereby the appellants have been convicted under Sections 302/34 &
506 (2) IPC and sentenced for a maximum term of life imprisonment
with fine stipulation.
We have gone through the judgment of the court below, lower court
record as well as contents of the FIR.
It comes out that an FIR was lodged by PW-1 Smt. Gauri Devi (wife of
Girija Shankar Tiwari deceased) with respect to incident said to have
been taken place in the midnight of 07/08.12.2008 at 02.40 hours
wherein it has been averred that the appellants, namely, Bhagauti and
Munna Lal, who were armed with Katta, fired on Girija Shankar
Awasthi and the appellants, namely, Rakesh and Santosh Awasthi, who
were armed with Banka, inflicted blows on Girija Shankar Tiwari while
entering into house and on being challenged they fled away from the
spot. Admittedly, enmity between the parties is going on with respect to
election of Gram Pradhan of the village which had developed the
motive with respect to commission of present crime.
The complainant, wife of the deceased; Ishwar Deen, brother of the
deceased; and Smt. Shanno, daughter of the deceased, have been
examined as PW-1, PW-2 & PW-3 respectively. These are the witnesses
of fact who, as per case of prosecution, were present on the spot.
We have gone through the statements of all these witnesses and post
mortem report of Girija Shankar Tiwari deceased.
In the post mortem report of Girija Shankar Tiwari, four injuries have
been shown on the person of the deceased and amongst which injury
No. 1 is multiple abrasion (4 x 4 cm) on the right side of the face; injury
No. 2 is incised wound (5 x 1 cm) on the right side of the neck; injury
No. 3 is multiple wounds in an area of 10 x 5 cm; and injury No. 4 is
firearm wound of entry, oval in shape, 5.5 cm below from the right
chest and 16 cm below from right axilla.
Stress has been laid by learned counsel for the appellants that if there
would have been any reason, as per prosecution case, the accused
persons would have committed murder of complainant, who happens to
be gram pradhan, but there was no occasion for them to commit murder
of Girija Shankar Tiwari since, as per prosecution, the motive with
respect to commission of crime was enmity between the parties due to
election of village pradhan.
Admittedly, PW-1, the complainant and the wife of the deceased, was
sitting pradhan at that time and right from the beginning it comes out
from the FIR that Bhagauti and Munna Lal fired upon Girija Shankar
while Rakesh and Santosh inflicted blows upon the body of the
deceased. Further argument advance by learned counsel for the
appellants is that plea of alibi was taken by Munna Lal that he was not
present at the time of occurrence rather on that date he was 90 km. far
from the place of occurrence, even he has stated this thing in his
statement recorded under Section 313 Cr.P.C. Further submission is
that, as it also comes out from the judgment, that the plea of alibi
pleaded by Munna Lal is not accepted.
We while going through the post mortem report find, prima facie at this
juncture, that Girija Shankar has received one gunshot injury, one
incised wound, one multiple abrasion, one firearm wound of entry and
one wound exit only.
Prima facie, at this juncture without further entering into merit of the
case we find that Munna Lal, convict of Criminal Appeal No. 1102 of
2010, is entitled to be released on bail. Further, it has been submitted
that Munna Lal was on bail during the course of trial and he did not
misuse the liberty of bail granted to him and the appeal will take
considerable long time for reaching at its logical conclusion.
Let appellant Munna Lal, convict of aforesaid Sessions Trial, be
released on bail on his furnishing a personal bond and two sureties each
in the like amount to the satisfaction of Chief Judicial Magistrate,
Gonda.
Realisation of half of the fine is stayed and remaining half of the fine
shall be deposited by the appellant within one month from the date of
his release on bail.
The court below is directed to transmit to this Court forthwith
photocopies of bond and sureties filed by appellant to be preserved in
the record maintained here.
So far as prayer for bail of other appellants, namely, Bhagauti, Rakesh
and Santosh is concerned, prima facie, we do not find, at this juncture,
their case fit for releasing them on bail. The prayer made on their behalf
is hereby rejected
Order Date :- 9.7.2010
Pradeep/-