Allahabad High Court
Vagesh And Anr. vs State Of U.P. on 5 April, 2022
Bench: Manoj Misra, Sameer Jain
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 45
Case :- CRIMINAL APPEAL No. - 5254 of 2019
Appellant :- Vagesh And Anr.
Respondent :- State of U.P.
Counsel for Appellant :- Ram Shiromani Shukla,Anubhav Shukla,Dilip Kumar Yadav,Pradeep Kumar Pal
Counsel for Respondent :- G.A.
Hon'ble Manoj Misra,J.
Hon'ble Sameer Jain,J.
Heard Ms. Gunjan Sharma, holding brief of Sri Pradeep Kumar Pal for the appellants and Sri J.K. Upadhyay, learned AGA for the State on the bail prayer of the appellants.
The appellants Vagesh and Surendra have been convicted under Section 302/34 IPC and sentenced to imprisonment for life vide judgment and order dated 11.7.2019 passed by the Additional Sessions Judge, Court No.11, Badaun in Sessions Trial No. 658 of 2012 (State Vs. Vagesh and another).
The contention of learned counsel for the appellants is that first information report was lodged on 4.10.2011 by father of the deceased after finding his body, with throat slit, near a chak road which was under construction. The F.I.R. neither named any accused nor expressed suspicion against any person. For the first time, the name of accused-appellants alongwith two other unknown persons surfaced in an application (Exhibit Ka-2) dated 23.11.2011 submitted by the informant (PW-1); wherein it was alleged that the incident dated 4.10.2011 was witnessed by PW-2, PW-3 and PW-4 and according to them, it was the appellants who killed the deceased. After the application of PW-1, dated 23.11.2011, the statements of PW-2, PW-3 and PW-4, under section 161 Cr.P.C., were recorded on 26.11.2011.
The contention of the counsel for the appellants is that PW-2, PW-3 and PW-4, the alleged witnesses of the incident, are close associates of the informant and were of the same village, therefore, the delay on their part in making disclosure about the offenders is a clinching circumstances that seriously dents their credibility and reliability in the light of the settled legal principle that where a person, without cogent explanation, delays disclosure of a gravely incriminating circumstance against a person, his disclosure about that incriminating circumstance loses most of its value (vide Kali Ram Vs. State of Himanchal Pradesh, (1973) 2 SCC 808. Further, it is submitted that the ocular account is not trustworthy inasmuh as it also implicates two unknown persons with guns having their face covered by a Dhata (cloth). If there were two other men with guns, why would they not use it and, therefore, it appears, there presence/implication, which could not be confirmed by investigation, is only to explain the delay in making disclosure earlier, by stating that they were terrified because of those two unknown masked men who held guns.
It has been submitted that such an explanation appears flimsy; more so, when it has been proved on record that those alleged eye witnesses were close associates of the informant and were residents of the same village. It is submitted that the reason for false implication has been disclosed in the statement recorded under Section 313 Cr.P.C, which is, that there has been a dispute with regard to allotment of fair price shop in the village.
It has been submitted that nothing incriminating has been recovered from the appellants, during investigation, and it is a case of false implication where the trial court, without testing the evidence, accepted it as gospel truth. It has been submitted that the appellants were on bail during the course of trial and have no previous criminal history and they have never misused the bail, therefore, in the facts and circumstances of the case as noted above, they are entitled to be released on bail pending decision of their appeal. It has been submitted that appellants have already suffered incarceration of nearly 3 years and the likelihood of the appeal being heard in near future is remote and, therefore, it is a fit case where the appellants be released on bail.
Sri J.K. Upadhyay, learned AGA for the State, opposed the prayer for bail by pointing out that though there may be delay in disclosure of the names by the prosecution witnesses but those witnesses have supported the prosecution case in their deposition during trial and, therefore, it is not a fit case where the appellants be released on bail.
Learned AGA, however, could not point out any criminal history or criminal antecedents of the appellants and he has also not been able to demonstrate that any incriminating weapon used in the crime was recovered from the appellants during the course of investigation. He also could not point out any material on the basis of which it could be inferred that on being released on bail, the appellants may abscond or misuse the bail.
After giving thoughtful consideration to the rival submissions, bearing in mind that the first information report was lodged against unknown persons without stating that there was an eye witness of the incident; and the name of accused surfaced for the first time after 45 days on information of those persons who were residents of the same village and had allegedly witnessed the incident; and that the explanation offered by them for the delay in making disclosure, prima facie, appears flimsy, by keeping in mind that the appellants were on bail during the course of the trial and there is nothing on record to demonstrate that they have misused the liberty of bail or have criminal antecedents, without expressing any conclusive opinion on the merits of the appeal, we are of the view that the appellants have been able to make out a case for grant of bail pending decision of the appeal.
Let the accused appellants-applicants Vagesh and Surendra convicted and sentenced by the Additional Sessions Judge, Court No. 11, Badaun vide judgment and order dated 11.7.2019 in Session Trial No. 658 of 2012 (CNR No. UPBN 01-000286/2012), (State Vs. Vagesh and anothers) arising out of Case Crime No. 1348 of 2011 punishable under Section 302/34 IPC, be released on bail in the above case on furnishing personal bond and two sureties each of the like amount to the satisfaction of the Chief Judicial Magistrate, Budaun subject to furnishing undertaking that they will co-operate in the hearing of the appeal.
Realization of fine to the extent of fifty per cent shall be kept in abeyance during the pendency of the present appeal, if already not deposited.
On acceptance of bail bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.
Order Date :- 5.4.2022
S.K.S.
