Allahabad High Court
Kishan & Others vs State Of U.P. on 2 July, 2013
Bench: Vinod Prasad, Anjani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- CRIMINAL APPEAL No. - 5628 of 2010
Appellant :- Kishan & Others
Respondent :- State Of U.P.
Counsel for Appellant :- Lav Srivastava,Anil Raghav,Ghanshyam Ojha,S.S.Sachan,Saurabh Gour,V.P. Srivastava
Counsel for Respondent :- Govt. Advocate
Hon'ble Vinod Prasad,J.
Hon'ble Anjani Kumar Mishra,J.
Heard Sri A.B.L. Gaur learned Senior counsel for the appellant and learned AGA for the State.
Sri A.B.L. Gaur, learned Senior Advocate in support of second bail prayer of the two appellants, namely, Kishan and Ashok urged that their case, from the FIR allegation, stands at par with rest co-convicts who have already been allowed bail by another Bench of this Court.
It is therefore, urged that the case of the two appellants is at par. Distinguishing their case for the reason that country made pistols were recovered at their pointing out is no distinction at all once their case is found to be identical with other accused persons who had executed the double murder.
It is next urged that PW-2, who is the daughter of one of the deceased Mahipal and sister of another deceased Km. Renu has turned hostile did not support the prosecution case. Referring to the page 12 of the impugned judgment, it is contended that according to her testimony assailants had muffled their faces and she could not identified them. She being an injured witness her presence at the spot cannot be doubted submitted learned counsel.
The contention which has been raised is that there was insufficient sources of night to identify unknown assailants and because of earlier dispute regarding landed property, that the appellants have been framed him in the present case. Learned counsel further submitted that appeal will take many years to be decided and one of the two appellants was on bail and from other co-convicts they have already undergone one year further incarceration.
Learned AGA arguing to the contrary submitted that the witness informant had identified them in the torch and debri light and since assailants were co-villagers there was no difficulty identify them even by their features.
We have considered the rival submissions. Two facts which have been strenuously urged before us firstly that accused having identical role have already been allowed bail and secondly that the sole injured witness who was close relatives of the two deceased has turned hostile, compels us to release the two appellants on bail as their case not only stands at par with other co-convicts but it will have to be adjudged as to whether there was sufficient light for the witnesses to identify the assailants or not? The above arguments and period of detention and the fact that the appeal is not likely to be heard in near future are added factors therefore we consider it appropriate to release the appellants on bail.
Let the appellants, namely, Kishan and Ashok be enlarged on bail on their furnishing a personal bond of rupees one lakh and two sureties each in the like amount to the satisfaction of trial Judge concerned in S.T. Nos. 387 of 2006 and 410 of 2006, under sections147, 148, 307/149 and 302/149 I.P.C. and Section 25 Arms Act, P.S. .Jahangirpur, District Gautam Budh Nagar.
As soon as personal and surety bonds are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by trial Judge concerned to be kept on the record of this appeal.
The appellants are allowed one month time to deposit entire amount of fine awarded to them.
Since paper book already prepared we direct the appeal to be listed first week of August, 2013 before the appropriate Bench for final hearing.
Order Date :- 2.7.2013
Priyanka
