Court No. - 46 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3072 of 2010 Petitioner :- Viri Singh & Others Respondent :- State Of U.P. Petitioner Counsel :- Nitinjay Pandey,Pankaj Sharma Respondent Counsel :- Govt. Advocate,Rajendra Kumar Srivastava AND Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3355 of 2010 Petitioner :- Asha Ram Respondent :- State Of U.P. Petitioner Counsel :- Nitinjay Pandey,Pankaj Sharma Respondent Counsel :- Govt. Advocate AND Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 3356 of 2010 Petitioner :- Durvesh Respondent :- State Of U.P. Petitioner Counsel :- Nitinjay Pandey,Pankaj Sharma Respondent Counsel :- Govt. Advocate Hon'ble Amar Saran,J.
Hon’ble Shri Kant Tripathi,J.
Since the aforesaid three appeals have been preferred against the judgement
and order dated 05.05.2010 passed by the District & Sessions Judge,
Firozabad in Session Trial No. 242 of 2007 (State v Viri Singh & others)
arising out of Case Crime No. 69 of 2006, under sections 147, 148, 149, 302
and 201 IPC, P.S. Eka, District Firozabad, the bail application filed in the
aforesaid appeals are being disposed of by this common order.
Heard learned counsel for the appellants and the learned AGA for the State
and perused the record.
The learned counsel for the appellants submitted that there is no eye witness
account of the incident. P.W. 1, Smt. Dhoopshri, the wife of the deceased, has
no doubt supported the prosecution story to certain extent but was not present
at the time of the occurrence. The injured witness Ram Sewak (P.W.-4) has
not supported the prosecution story. The presence of P.W. 2, Dori Lal, who is
a relative of the deceased and resident of a different village, at the time of the
incident as well as at the time of recovery of the dead body, was highly
doubtful. Initially, this witness has not given any statement regarding
complicity of the appellants and the other accused but when re-examined
under section 311 of the Code of Criminal Procedure, he gave statement
supporting the prosecution case, therefore, he is not a reliable witness.
The learned counsel for the appellants further submitted that according to the
prosecution case, blood stained Banka and Kulhari were recovered
respectfully on the pointing out of the appellants Asha Ram and Durvesh but
there is no expert’s report to show that the blood found on the said weapons
was of human blood.
It was next contended that the dead body of the deceased was found in a canal
in the district Mainpuri about 20-22 kms away from the place of occurrence.
The learned counsel for the appellants further submitted that the ante mortem
injuries sustained by the deceased were caused with sharp edged weapon,
therefore, the involvement of the appellants Viri Singh, Banwari and Bhura
alias Langda, who had no sharp edged weapon are highly doubtful. According
to the prosecution case, the appellants Asha Ram had Banka and the appellant
Durvesh had Kulhari and the appellants Viri Singh and Banwari had country
made pistols and the appellant Bhoora alias Langda had a Lathi.
In furtherance of the arguments, the learned counsel for the appellants
submitted that the FIR was lodged on the next day of the incident at about
10.00 A.M., therefore, the FIR was highly delayed with no proper
explanation.
The learned AGA on the other hand submitted that P.W.-1 Smt. Dhoopshri
(wife of the deceased) has very categorically supported the prosecution story
in the witness box and her statement is consistent with the FIR and medical
evidence. According to her, the accused persons, armed with deadly weapons,
forcibly took away the injured upto canal by assaulting him with Kulhari, and
she after that proceeded in search of her husband and noticed presence of
blood from her house upto the canal. The dead body of the deceased was
recovered from the same canal after about 3-4 days of the occurrence. The
presence of the witness Dori Lal (P.W.-2) at the scene of the occurrence as
well as at the place of the recovery of the dead body could not be shaken
during the trial.
The learned AGA further submitted that there was strong motive for
commission of the murder. The deceased had been acquitted in the case
regarding murder of the brother of the appellant Durvesh and on account of
revengeful attitude the deceased was massacared.
In rebuttal, the learned counsel for the appellant submitted that there was no
reason for the appellants Banwari and Bhura alias Langde, who are residents
of different village, to commit the murder of the deceased on account of the
aforesaid motive. It was further contended that the appellant Viri Singh and
Banwari, according to the prosecution itself, had country made pistols and the
appellant Bhoora alias Langda had Lathi but no injury caused with such
weapons was found on the dead body of the deceased, therefore, the
involvements of these three appellants are highly doubtful.
Keeping in view the facts and circumstances of the case and the submissions
of the learned counsel for the appellants and the learned AGA and also
without expressing any opinion on the merits of the rival contentions, we are
of the view that the appellants Viri Singh, Banwari and Bhura alias Langda
have made out a case for bail.
Therefore, the appellants Viri Singh, Banwari and Bhura alias Langda are
bailed out during the pendency of this appeal in the aforesaid Sessions Trial
on their each furnishing a personal bond and two sureties each in the like
amount to the satisfaction of the court concerned.
The realisation of half of the fine, payable by the aforesaid three appellants,
shall remain stayed during pendency of the appeal, provided they deposit half
of the fine within one month.
On acceptance of bail bonds and personal bonds, the lower court shall
transmit photo state copies thereof to this Court for being kept on the record
of this appeal.
The bail prayers of the appellants Asha Ram and Durvesh are rejected.
Let the paper books be prepared.
List the appeal for hearing in due course.
Order Date :- 5.8.2010
shailesh