Allahabad High Court
Shreedev & 3 Others vs State Of U.P. on 10 July, 2013
Bench: Naheed Ara Moonis
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 43
Case :- CRIMINAL APPEAL No. - 2973 of 2013
Appellant :- Shreedev & 3 Others
Respondent :- State Of U.P.
Counsel for Appellant :- Ravindra Sharma,Nayab Ahmad
Counsel for Respondent :- Govt. Advocate
Hon'ble Naheed Ara Moonis,J.
Heard learned counsel for the appellants and the learned AGA.
Admit.
Summon the lower court record.
According to the prosecution case, on the basis of an oral report lodged by the complainant on 27.1.2007, that the appellants, four in number, armed with lathi-danda started assaulting his son, who has sustained serious injuries, the NCR was registered, and after investigation the charge sheet was submitted against the appellants under Sections 323, 504, 304 IPC and the charges were framed only under Section 304/34 IPC. The injured was initially examined and the doctor had found six injuries on the person of the victim including the lacerated wound and contusion. Later on the injured succumbed to injuries and the post mortem was conducted by the doctor who had found one lacerated wound on the head and opined that the victim has died due to coma as a result of ante mortem injuries sustained by him.
It is submitted by the learned counsel for the appellants that in the F.I.R. general role of assault has been assigned to all the appellants for causing injuries with lathi-danda to the deceased, while according to the post mortem report there is only one injury to be the cause of death, as such it is not ascertainable who was the author of the fatal injury. There is discrepancy in injury report and the postmortem report of the deceased.
It is further submitted that the conviction has been recorded by the trial court under Section 304((ii) read with Section 149 IPC for eight years rigorous imprisonment with a fine of Rs.20,000/- each and in default of payment of fine, each of the appellant has to undergo six months additional rigorous imprisonment. There were only four accused persons, there was no fifth accused, yet the trial court has convicted the apepllants with the aid of Section 149 IPC, whereas for formation of an unlawful assembly five or more persons are required. No charge under Section 149 IPC was framed, causing prejudice to the appellants, though the charges were framed by the trial court under Section 304 read with 34 IPC.
Learned AGA has contended that the order of conviction can be awarded under Section 149 IPC when the charges were framed under Section 34 IPC against the appellants who are four in number as they were aware of basic ingredients of the offence, hence no prejudice has been caused to them.
However, under the facts and circumstances of the case, this Court finds a fit case for bail.
Without expressing any opinion on the merits of the case, let the appellants, namely, Shreedev, Braj Kishore, Duli Chand and Sher Singh, convicted and sentenced in Session Trial No.638 of 2008, State Vs. Shreedev & others, under Section 304(ii)/149 IPC, P.S. Ughaiti, District Budaun, be released on bail on their furnishing a personal bond each with two sureties each in the like amount to the satisfaction of the court concerned. The photocopies of the bonds so furnished be transmitted to this Court to be kept on record of the appeal.
It is made clear that the realization of fine is not stayed.
After receipt of the record the office is directed to prepare the paper book and list the appeal for hearing in due course.
Order Date :- 10.7.2013
Mustaqeem.
