HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 43 Case :- CRIMINAL APPEAL U/S 374 CR.P.C. No. - 4295 of 2011 Petitioner :- Dayashanker Respondent :- State Of U.P. Petitioner Counsel :- Sudhir Kumar Tripathi Respondent Counsel :- Govt. Advocate Hon'ble Shri Kant Tripathi,J.
Heard learned counsel for the appellant, Mr. PK Kashyap for the complainant and learned AGA and perused the impugned judgement rendered by the learned Additional Sessions Judge, Court No. 2, Gorakhpur in Sessions Trial No. 873 of 2002.
Admit. Summon lower court record.
Learned counsel for the appellant submitted that the learned trial court has already disbelieved a part of the prosecution story and acquitted co-accused Ramashish and Dharmender. It was next submitted that according to the prosecution only one blow was made on the deceased, which unfortunately proved to be fatal, therefore, the assault was not intentional or with the knowledge to kill the deceased. It was further submitted that the appellant was on bail during the trial and never abused the same. The maximum sentence imposed on the appellant is of five years under section 304 Part II IPC. It was lastly contended that in case the appellant is not released on bail, the appeal would, in due course, become infructuous as there is no hope of an early hearing of the appeal due to heavy dockets.
In my opinion, prima facie, the aforesaid submissions of the learned counsel for the appellant have substance, therefore, it is just and expedient to exercise the discretion in favour of the appellant.
Keeping in view the nature of offence, evidence, complicity of the accused, the severity of punishment and submissions of the learned counsel for the appellant, the complainant and the learned AGA, I am of the view that that the appellant has made out a case for bail.
Let the appellant Dayashanker involved in the aforesaid session trial be released on bail during the pendency of the appeal on his 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 shall remain stayed during pendency of the appeal, provided the appellant deposits 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.
Let the paper books be prepared.
List the appeal for hearing in due course Order Date :- 27.7.2011 shailesh