Allahabad High Court
Yusuf vs State Of U.P. on 20 April, 2018
Bench: Karuna Nand Bajpayee
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Court No. - 48
Case :- CRIMINAL APPEAL No. - 5638 of 2017
Appellant :- Yusuf
Respondent :- State Of U.P.
Counsel for Appellant :- M J Akhtar,V.M. Zaidi
Counsel for Respondent :- G.A.,Ghan Shyam Das
Hon'ble Karuna Nand Bajpayee,J.
Ref: Criminal Misc. Bail Application No. 320805 of 2017.
Counter affidavit on behalf of the State filed today is taken on record.
This application has been filed seeking the release of the appellant on bail in S.T. No. 159 of 2015, State of U.P. vs. Yusuf, Case Crime No. 714 of 2014, u/s 304 Part-II I.P.C., Police Station- Chandpur, District- Bijnor.
Heard Sri V.M. Zaidi, learned Senior Advocate assisted by the Sri M.J. Akhtar, learned counsel for the appellant and learned A.G.A. for the State as well as learned counsel for the complainant.
Perused the record.
Submission of learned counsel for the appellant is that the prosecution witnesses produced in the court were not named in the initial N.C.R. that was lodged by the deceased himself. It was also submitted that the statements of doctors are inconsistent and similarly the evidence produced by the prosecution is also not in consonance with the version given in the N.C.R. There was no such motive behind the incident, if at all there was any, to cause death and therefore, the conviction was also recorded under Section 304 Part-II of I.P.C. It was also submitted that the appellant is in jail since 7.9.2017 and there is little likelihood of hearing of this appeal at an early date. It was also pointed out that injuries caused to the victim do not reflect that any extreme violence was committed against the deceased and there is no unusual display of cruelty on the part of accused and this appears to be a case of grave and sudden provocation only. Therefore, keeping in view the period of detention, the appellant may be released on bail.
Learned A.G.A. as well as learned counsel for the complainant opposed the prayer for bail and have submitted that as the initial version recorded in police station by the police was given by the deceased himself and subsequently because of same injury inflicted by the sole appellant, the deceased had died also therefore, it shall be admissible under Section 32 of Indian Evidence Act as dying declaration. The version that was recorded by the police was on the basis of oral statement made by the deceased himself and the allegation made by the deceased was against the sole accused-appellant and there was no ambiguity in it which explains and relates to the cause of his death. According to it in a quarrel that took place in between the deceased and the appellant, the appellant was abusing him which was resisted by him, on which the appellant made assault upon the deceased by a blunt weapon 'danda' resulting in the serious injury which later on proved fatal. The post mortem report corroborates the version given by the deceased. Submission is that though when the deceased was examined as injured by another doctor, the injury was described as incised wound but often the injury on head assumes the ostensible shape of the incise wound and if the doctors are not very cautious a lacerated wound may be mistaken to be an incised wound because of the effect of traction caused by the underlying bones. This mistake is common and that is why the same has been discussed in various authorities of medical jurisprudence and therefore, on that basis, the version given by the deceased himself which amounts to dying declaration cannot be discredited. Further submission is that as the initial version was recorded on the basis of oral statement that was given by the deceased himself in injured condition after having suffered a fracture on his head, it shall not be expected that in that dire state of health he would be giving the meticulous details of the occurrence and would be stating all the things, names of witnesses etc. in the F.I.R. and such an omission would not discredit or create any doubt on the evidentiary value of the account given by the witnesses nor shall such omission make the presence of witnesses on spot doubtful.
Looking to the nature of offence, its gravity and the evidence in support of it and the overall circumstances of this case, this Court is of the view that the appellant has not made out a case for bail.
Therefore, the prayer for bail of the appellant stands rejected.
However, it may be observed that if the appeal of the appellant is not heard within one year from now, for no fault attributable to the appellant, he will have the liberty to renew his prayer for bail.
Order Date :- 20.4.2018/Naresh
