Suryamani Yadav vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 16511 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Neutral Citation No. - 2023:AHC-LKO:37130
 
Court No. - 28
 

 
Case :- CRIMINAL APPEAL No. - 1569 of 2022
 

 
Appellant :- Suryamani Yadav
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home, Lucknow
 
Counsel for Appellant :- Dinesh Chandra Shukla
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shree Prakash Singh,J.

Supplementary affidavit filed today is taken on record.

Heard.

Admit.

Learned A.G.A. has accepted notice on behalf of the State.

List/put up this matter on 4.7.2023 for hearing.

Order on Bail Application

Heard learned counsel for the appellant, Sri Aniruddh Kumar Singh, learned A.G.A.-I for the State and perused the material on record.

Instant criminal appeal has been preferred against the Judgment and order dated 22.6.2022 in Sessions Trial No.26 of 2017 passed by Additional Sessions Judge, Court No.1, Ambedkar Nagar arising out of Crime No. 402 of 2016, P.S. Kotwali Akbarpur, District Ambedkarnagar by which the appellant has been convicted and sentenced under Section 307 I.P.C. for ten years rigorous imprisonment with fine of Rs.10,000/- and in default of fine, further three months' simple imprisonment.

Learned counsel for the appellant submits that the appellant is innocent and he has falsely been implicated in the instant matter. The prosecution has failed to prove its case beyond reasonable doubt as statement of Sub Inspector Mrityunjay Singh, who was Investigating Officer in this matter has stated in his cross-examination that the injured did not inform him with respect to the name of the person who is said to have opened fire over him. He added that in fact the injuries, which are said to have been caused with the firearm, are also doubtful as the doctor in his cross-examination has very specifically stated that no wound of entry or exit was found in medico legal report. From bare perusal of the injury report, which has been discussed by the trial court, it is evident that the injuries are on arms and armpits and the same are not on vital part. Had there been any intent of killing, certainly injuries would have been caused on the vital part of the body. In fact, the First Information Report has been lodged by the brother of the injured, who is an interested witness and has stated that he has seen the appellant while fleeing away from the site of occurrence though it is not understandable as to how within fraction of a second, he reached at the place of occurrence. He further submitted that incident is said to have occurred at 9.15pm in the night in the village and it is also doubtful that how the injured or the informant has identified the appellant in the darkness of night. Adding his argument, he next submits that there are several other discrepancies in the story of the prosecution as the trial court has not appreciated the evidence and statements of the witnesses in its right perspective.

He has placed reliance on Judgement of the Apex Court reported in 1996 Criminal Law Journal 4461, Devinder Vs. State of Haryana and has referred paras 7 and 9 of the aforesaid Judgments. Paras 7 and 9 thereof are quoted as under:-

"7. Having carefully gone through the entire materials on record, we are unable to sustain the impugned judgment. Though apparently there is no reason to disbelieve the two eye witnesses, there are certain underlying circumstances which persuade us to give the benefit of reasonable doubt to the appellant. According to the prosecution case and as testified) by Jagdish immediately after the assault Ramphal was taken to the hospital by him (Jagdish) and Umesh (not examined), who were present at the time of the assault. Dr. Jain testified that at the time of admission Ramphal was fully normal. From the medico legal report (Ex. PS) that the doctor sent to the police after examining Ramphal we find that apart from his name, the father's name of Ramphal, his address, his occupation and an account as to how the injuries were caused find place. Obviously all these particulars had been furnished by Ramphal, and/or Jagdish and Umesh, who had accompanied him. In that context it was expected, if really the appellant was the assailant, that his name would be disclosed by all or any of them while furnishing the cause of the injuries. It can therefore, be legitimately inferred that at the earliest available opportunity the name of the appellant was not disclosed.

9. For the foregoing discussion the prosecution case as presented before the Court cannot be accepted. We, therefore, allow this appeal, set aside the conviction and sentence recorded against the appellant and acquit him. The appellant, who is in jail be released forth with unless wanted in connection with some other case."

Placing reliance on the aforesaid Judgment, he submits that Hon'ble Apex Court has held that in medico legal report sent to police, though name of injured, his address, his occupation and account of how injuries caused find place but name of accused does not find place, meaning thereby that name of the assaillant was not disclosed at the earliest available opportunity. He submits that the case of the present appellant is covered with the ratio of the aforesaid Judgment as, at the first hand, injured did not inform the name of the accused appellant to the Investigating Officer as is evident from the statement of the Investigating Officer in his cross-examination.

Apart from the above, he also added that the appellant is suffering with serious ailment on account of pistol bullet injury and in the C.T. scan, a bullet was found in right mastoid air cell and he has been referred to Higher Centre/ S.G.P.G.I. for treatment. The Medical Officer, District Jail, Ambedkarnagar wrote to the Superintendent, District Jail, Ambedkarnagar to provide guard so as to take him to S.G.P.G.I., Lucknow where the appellant has been referred for treatment. After passing the order of the High Court, when he was taken to the S.G.P.G.I, medical prescription could not be prepared so he was taken to Trauma of Medical College, Lucknow where he was not admitted due to the non-availability of bed. It is further submitted that health of the appellant is being deteriorated day by day. The appellant has explained criminal history of 16 cases in para 15 of the supplementary affidavit dated 1.8.2022 wherein in some of the cases, the final report has been submitted or he has been acquitted or he is on bail. He added that present appellant was on bail during trial and he did not misuse the liberty. After conviction, he is in jail since 22.6.2022. The appellant undertakes that in case he is granted bail, he will not misuse the liberty and would co-operate in hearing of the appeal.Thus, submission is that he may be released on bail.

Learned A.G.A. for the State has vehemently opposed the contention aforesaid and submitted that there are serious allegations against the appellant and after thorough investigation, he was found involved in committing the offence. He further submitted that there is specific allegation for opening fire over the injured and injured has received firearm injuries as is evident from the injury report. He also added that the doctor and other witnesses have supported the version of the prosecution. There is no doubt in the story of the prosecution and there is long criminal history against the appellant and, as such, the appellant is not entitled to any relief.

Having heard learned counsel for the parties and after perusal of the record, it is evident that the applicant was on bail during trial and, after conviction, he is in jail since 22.6.2022. This Court further noticed the fact that there is bullet stuck in the brain of the appellant and as per the report of the Medial Officer of District Jail Ambedkarnagar, his condition is very critical and he has been referred to the S.G.P.G.I This Court, taking note of the fact that the appellant is ailing seriously, directed the Superintendent of Police to provide guard as per requirement of District Jail to take the appellant to SGPGI or higher centre and it has been informed while filing the supplementary affidavit that the appellant was taken to the hospital but since no bed was available, thus, he was refused to be admitted in the hospital and he has been sent to jail again. This Court has also examined Judgment impugned wherein from the statement of doctor in his cross examination, it is evident that he did not find any exit and entry wound over the body of the injured. Further there is statement of Investigating Officer in his cross-examination that at the first hand, injured has not informed name of the accused appellant and, later on, he has developed story naming the appellant on the behest of others. The F.I.R. has been lodged by the brother of the injured who stated that he has seen while fleeing away of the appellant from the place of occurrence but it has not been explained that as to how within fraction of second, he reached at the place of occurrence. Prima facie injuries are on arms and armpits of the injured person and thus, intention of killing, which has been described by the trial court, seems to be doubtful. Criminal history of the appellant has been explained by way of filing supplementary affidavit dated 1.8.2022. The appellant was on bail during trial and he did not misuse the liberty. There seems to be no possibility of hearing of instant appeal in near future, hence, I find it a fit case for bail.

Let the appellant Suryamani Yadav be released on bail in the aforementioned sessions trial, during the pendency of appeal on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned.

It is made clear that fine is not stayed.

On acceptance of bail bonds, the court concerned shall transmit the photo stat copies thereof to this Court for being kept on the record.

Order Date :- 24.5.2023

Ram Murti