Allahabad High Court
Anshu vs State Of U.P. on 25 May, 2016
Bench: Arvind Kumar Tripathi, Abhai Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 42
Case :- CRIMINAL APPEAL No. - 305 of 2016
Appellant :- Anshu
Respondent :- State Of U.P.
Counsel for Appellant :- Dileep Kumar, Rajrshi Gupta
Counsel for Respondent :- G.A.,Alok Sharma,Manish Tiwari
Hon'ble Arvind Kumar Tripathi, J.
Hon'ble Abhai Kumar, J.
Heard Sri Dileep Kumar, Sri Rajrshi Gupta, learned counsel for the appellant and Sri Alok Sharma, appearing on behalf of the complainant, and A. N. Mulla, learned G.A for the State.
Learned counsel for the applicant submitted that in fact other side was the aggressor and in self defence co-accused Ashu, brother of the appellant shot fire causing firearm injury to injured Kamal Yadav. With regard to the incident dated 31.12.1997, cross case was lodged and in the case lodged from appellant's side, the accused were acquitted against which appeal was filed and listed alongwith this criminal appeal. He further submitted that even according to the first information report lodged by mother of injured Kamal after information given by Kamal and his brother Phool Chandra, that it was the co-accused Ashu who shot at Kamal Yadav causing grievous injuries. In the year 1998 Ashu was killed by the complainant's side. Though charge-sheet was submitted against the applicant and co-accused, but no statement of injured was recorded by the Investigating Officer and after the death of co-accused Ashu, injured Kamal and others witnesses were examined and they changed their versions and made allegations that it was the appellant - Anshu, who shot fire at Kamal Singh and not the co-accused Ashu. It was an improvement in the prosecution story after the death of the co-accused Ashu by the time when statement was recorded. He further submitted that in the counter affidavit criminal history of the applicant and his brother has been mentioned, but there were only four cases against the applicant, and in one case final report was submitted in which his brother Anshu has performed love marriage and subsequently the matter was settled. In other two cases under Section 406 in Case Crime No. 955 of 2007 under Section 406 I.P.C. final report was submitted in Case Crime No. 247 (A) of the year 2010 under Section 307 the applicant was acquitted. Another case was registered as Case Crime No. 666 of 2015 under Section 160 I.P.C, in which on the behest of complainant, he was implicated and challaned. There was no criminal history of the applicant before the present case. In the present case, the applicant has been convicted though the case of the prosecution is doubtful. The applicant was convicted and sentenced for a period of 10 years under Section 307 of I.P.C He is in jail since 04.10.2016. During trial he was on bail and he is entitled to be released on bail.
Learned A.G.A and counsel for the complainant vehemently opposed the prayer for bail. Counsel for the complainant submitted that so far as the role of the applicant in the F.I.R is concerned, the informant is mother of injured Kamal and she was not the eye witness and, therefore, there was a minor difference in the names of the accused. Hence the averment that Ashu shot fire was wrongly mentioned in the F.I.R but actually the appellant Anshu shot fire causing grievous firearm injury to injured Kamal and in view of criminal history assigned he is not entitled for bail.
Considered the submission.
In view of the nature of allegations and facts and circumstances of the case, as well as submissions made by learned counsel for the parties and also perusing the material brought on record, without expressing any opinion on merits of the case, it is a fit case for grant of bail. However, any observation made herein above, will not affect the trial of the case.
Let the applicant - Anshu involved in S.T No. 1112 of 2003 - State Vs. Anshu & another, convicting the appellant under Sections 307/34 I.P.C, vide judgement and order dated 18.12.2015 and 04.01.2016, passed by Additional Sessions Judge, Court No. 7, Shahjahanpur (arising out from Case Crime No. 516 of 1997, Police Station - Sadar Bazar, District - Shahjanapur, be released on bail on his furnishing a personal bond and two local sureties each of the like amount to the satisfaction of the court concerned.
Order Date :- 25.05.2016. / Vinod.
