Bahadur Singh & Another vs State Of U.P.
2018 Latest Caselaw 709 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 32
 

 
Case :- CRIMINAL APPEAL No. - 1724 of 2017
 

 
Appellant :- Bahadur Singh & Another
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Dr. Akhilesh Kumar,Rajesh Kumar Srivastava
 
Counsel for Respondent :- G.A.
 
Along with
 
Case :- CRIMINAL APPEAL No. - 4988 of 2015
 

 
Appellant :- Laxman
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Janmed Kumar, Anurag Shukla,Dr. Akhilesh Kumar
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shashi Kant Gupta,J.

Hon'ble Bachchoo Lal,J.

Ref : Cr. Misc. Bail Application Nos. 185249 of 2016 and 380995 of 2015.

The bail prayer of the aforesaid appellants is being heard together and decided by a common order.

Heard Sri Dr. Akhilesh Kumar, Sri G.S. Chaturvedi, Senior Advocate, assisted by Sri Anurag Shukla, learned counsel for the appellants, learned AGA for the State on the bail application of the appellants who have been convicted in S.T. No. 1382 of 2008, Crime No. 505 of 2008 under Sections 302/34 and 201 I.P.C. Police Station Malpura District Agra and sentenced to undergo imprisonment for life with fine.

Learned counsel for the appellants made the following submissions:- the incident is alleged to have been occurred in the intervening night of 31/1.9.2008 and the first information report was lodged by Awadhesh Kumar, the brother of the deceased, on 3.9.2008 at 4.00 a.m. after 48 hours of the alleged incident; there was an inordinate delay of two days in lodging the F.I.R. but no plausible explanation has been given with regard to delay. According to F.I.R., on 31.8.2018 at about 10.30 p.m. the deceased Deena after having his meals with informant and one Sher Singh went to the house of the accused Bahadur after informing about it to the informant which shows that the deceased was having cordial relation with accused Bahadur, otherwise, deceased would have not gone to the house of the accused Bahadur and his brother Awadhesh Kumar also would have not allowed him to go to Bahadur's house during late night hours; P.W.-2 Lal Singh has deposed in his statement that on the fateful day in the night at 1.00 a.m. when he was coming back from Agra to his village along with one of the co-villagers Prem Singh he saw the deceased in the street light going along with the accused Maya, Bahadur and Laxman towards north-west direction; deceased Deena appeared to be in a drunken state and was surprised to see the deceased Deena in the company of with accused Bahadur, since the deceased was having enmity with him as such it caused suspicion in his mind and thereafter he started following them from behind. After following them for 1/2 kilometre, he saw the accused persons along with deceased sitting inside a hut situated in the colony of one Vinod Gupta. He saw the accused persons and the deceased in the light of Petro-max lantern who were talking amongst themselves. After a while, all of a sudden, Bahadur and Maya caught hold of the deceased whereupon Laxman hit the deceased on his head with a hammer as a result of which the deceased died on the spot. P.W. -2 Lal Singh deposed that after witnessing the incident he got terrified and could not disclose about the incident to anyone because the accused Bahadur was possessing a criminal mentality as prior to this incident, the accused Bahadur was involved in committing the murder of one Sumera. However, after two days of the alleged incident when he came back to his house from duty, his conscience did not allow him to keep mum in the matter as such he disclosed about the alleged incident to the informant Awdhesh, the brother of deceased Deena. Thereafter, F.I.R. was lodged against the accused persons.

Learned counsel for the appellants further submitted that the accused persons were living in the same village. It has been further submitted that the distance between the village of the deceased and the place of incident was one and a half kilometre. The dead body of the deceased was recovered from the field of one Vidyaram. P.W.-2 Lal Singh had alleged that he witnessed the incident from behind a pipal tree. Learned counsel for the appellants further submitted that the alleged story set up by P.W.-2 is totally improbable, unbelievable and concocted. The P.W.-2 has been set up just to work out the case. Learned counsel for the appellants further submitted that according to PW.-2, he saw the alleged incident along with one Prem Singh, however, the said Prem Singh was not produced before the trial court. Learned counsel for the appellants further submitted that prior to the alleged incident, no criminal case was pending against the accused as such the statement of P.W.-2 Lal Singh that he was terrified because accused persons had criminal mentality as he was involved in a murder case as such he did not disclose about the alleged incident to anybody for two days. The aforesaid explanation offered by P.W.-2 Lal Singh is totally non inspiring and concocted. It has further been submitted that it is most improbable that if the deceased was having enmity with the accused appellant neither the deceased would have gone nor the informant would have allowed his brother to visit Bahadur after 10.30 in the night and the story set up by Lal Singh that since deceased and appellant Bahadur were having enmity he got suspicion and started following them from behind is totally unbelievable and improbable. Learned counsel for the appellants further submitted that recovery of a crime weapon at the instance of accused is not admissible and inspiring. False recovery has been planted by the police in order to work out the case. It has further been submitted that the statement of last seen witness P.W.-2 Lal Singh is itself highly doubtful and improbable as such no reliance can be placed upon the so called recovery. It has further been submitted that the accused Laxman belongs to another village and the motive assigned to the accused for causing murder of the deceased is too weak. He further submitted that role of catching hold of the deceased has been assigned to Bahadur Singh and Maya whereas the role of hitting the deceased on his head with hammer has been assigned to the accused Laxman. The appellants are innocent and they have falsely been implicated in the present case. The evidence of the witnesses of fact is not believable. The false allegation has been made against the appellants. The appellants were on bail during the pendency of trial and they had not misused the liberty for bail. There is no likelihood of early hearing of the appeal in near future.

Per contra, learned AGA opposed the prayer for bail and supported the trial court's judgment. Learned A.G.A. further argued that there is eye witness account of p.w.-2 who had seen the accused persons committing the murder of the deceased, although the aforesaid fact was disclosed to the informant after two days as he was under shock and was afraid of accused Bahadur but has admitted that prior to the present case none of the accused persons was having any criminal case pending.

Having given our thoughtful consideration to the submissions of the learned counsel for the parties, without expressing any opinion on the merits of the case, we are of the opinion that the appellants have made out a case for bail.

Let the appellants Bahadur Singh, Smt. Maya and Laxman convicted in S.T. No. 1382 of 2008, Crime No. 505 of 2008, under Sections 302/34, 201 I.P.C. Police Station Malpura District Agra be released on bail on their furnishing a personal bond and 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.

On deposit of 50% of fine imposed on the appellants within a period of one month, the remaining fine shall remain stayed during pendency of the appeal.

The bail applications are allowed.

Office is directed to prepare paper books and list this appeal for hearing in due course.

Order Date :- 21.5.2018/Gss