Allahabad High Court
Ajay Kumar vs State Of U.P. on 24 August, 2016
Bench: Bala Krishna Narayana, Arvind Kumar Mishra-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 40
Case :- CRIMINAL APPEAL No. - 309 of 2016
Appellant :- Ajay Kumar
Respondent :- State Of U.P.
Counsel for Appellant :- Virendra Kumar Jaiswal
Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J.
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri V.P. Srivastava, Senior Advocate assisted by Sri Virendra Kumar Jaiswal, learned counsel for the appellant, learned A.G.A. for the State and perused the material on record.
The appellant, Ajay Kumar who is in jail has preferred this appeal against the judgement and order dated 21.11.2015 passed by the Third Addl. Sessions Judge, court no. 2, Ghaziabad in S.T. No. 2096 of 2009 (State vs. Rahul Tyagi and others) has been convicted and sentenced under Sections 147, 148, 149, 364, 302, 201, 34, 404 and 120B I.P.C., P.S. Simbhawali, district-Ghaziabad. He is seeking enlargement on bail during the pendeny of this criminal appeal.
It is contended by learned counsel for the appellant that according to the prosecution case the deceased Chandrapal Singh had gone missing on 25.5.2009 at about 4 p.m. and the informant Kamal Kumar who is the son of the deceased had been informed by the deceased's nephew Girish Kumar and his brother Rohtash, who were examined as PW1 and PW2 on the same date on which the deceased had gone missing, they had seen him consuming liquor in the company of the appellant and the other co-accused Rahul, Vinod and Ashok Valmiki in the evening of 26.5.2009 but yet the F.I.R. of the incident was lodged after an inordinate and unexplained delay of more than two days on 28.5.2009 at about 18:20 hours. He next submitted that inordinate delay of almost forty days on the part of the Investigating Officer in recording the statements of PW1 Girish Kumar and PW2 Rohtash on the basis of whose last seen evidence, the appellant and the other co-accused were nominated as accused by the informant in the F.I.R. creates a doubt regarding the truthfulness of the facts stated by them. He further submitted that although the prosecution has alleged that the dead body of the deceased was recovered on the pointing out of the appellant, Ajay Kumar but in none of the twelve photographs which were taken during the course of recovery of dead body under the instructions of the Investigating Officer and which were brought on record as Ext.Ka-2 to Ext.Ka-14, the appellant is visible and hence, the prosecution's claim that the dead body of the deceased was recovered at the pointing out of the appellant does not appear to be credible. When the I.O. was confronted with the aforesaid aspect of the matter he failed to come with any explanation.
Thus, in view of the above, not only the last seen evidence given by PW1 and PW2 against the appellant but also the recovery of the dead body on the alleged pointing out of the appellant, Ajay Kumar does not inspire any confidence. The prosection has totally failed to establish the circumstance from which the conclusion of guilt can be drawn against the appellant. He lastly submitted that the appellant, who has no reported criminal antecedents to his credit and is in jail since 30.5.2009, is entitled to be enlarged on bail during the pendency of the trial.
Learned A.G.A. has opposed the prayer for bail.
After considering the submissions made by learned counsel for the appellant and perused the lower court record and without expressing any opinion on the merits of the case, this Court is of the view that the appellant is entitled to be enlarged on bail during the pendency of the trial.
Let the appellant, Ajay Kumar be released on bail on his executing personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned in Session Trial No. 2096 of 2009, under Sections 147, 148, 149, 364, 302, 201 and 404 I.P.C., P.S. Simbhawali, District-Hapur.
It is further directed that recovery of 50% of fine from the appellant shall also remain stayed.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.
Let the paper book be prepared.
List this appeal for hearing in due course.
Order Date :- 24.8.2016
Faridul
