Allahabad High Court
Vineet And 2 Others vs State Of U.P. on 27 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:96057
Court No. - 77
Case :- CRIMINAL APPEAL No. - 568 of 2023
Appellant :- Vineet And 2 Others
Respondent :- State of U.P.
Counsel for Appellant :- Niklank Kumar Jain,Saurabh Yadav,Vimlendu Tripathi
Counsel for Respondent :- G.A.,Kalpana Singh,Sunil Kumar Dwivedi,Vidya Sagar Dwivedi
Hon'ble Rajeev Misra,J.
1. Heard Mr. Vimlendu Tripathi, the learned counsel for applicants-appellants, the learned A.G.A. for State-opposite party-1 and Mrs. Kalpana Singh, the learned counsel representing first informant.
2. Perused the record.
3. This criminal appeal has been filed challenging the judgment and order dated 21.12.2022 passed by the Additional Sessions Judge/FTC-I, Etah in Sessions Trial No. 378 of 2013 (State Vs. Vineet and Others), under Sections 307/34, 504 IPC Police Station-Kotwali City, District-Etah.
4. By means of the impugned judgment and order dated 21.12.2022, applicants-appellants have been convicted under Sections 307/34 IPC and consequently sentenced to 7 years rigourous imprisonment along with fine of Rs. 25,000/- each and in case of default in payment of fine, they are to undergo 6 months additional imprisonment, under Section 504 IPC and sentenced to 2 years imprisonment along with fine of Rs. 2,000/- each and in case of default in the payment of fine, they are to undergo one month additional imprisonment. All the sentences are to run concurrently.
5. Since the applicants-appellants were taken into custody by Court below on 20.12.2022, therefore, the applicants-appellants have filed aforementioned application under Section 389(1) Cr.P.C. seeking their enlargement on bail during the pendency of appeal and also the suspension of sentence awarded against them by Court below.
6. Mr. Vimlendu Tripathi, the learned counsel for applicants-appellants contends that though applicants-appellants are convicted accused yet they are liable to be enlarged on bail. In the submission of the learned counsel for applicants-appellants, the main role of causing fire arm injury to the injured is assigned to co-accused Lokesh. As such, the case of the present applicants-appellants is clearly distinguishable from the named co-accused Lokesh. It is then contended that applicants-appellants are in jail since 20.12.2022. As such, they have undergone more than one year and 4 months of incarceration. There is no likelihood of the appeal being heard in near future. Even otherwise, the main accused is already under incarceration. According to the learned counsel for applicants-appellants, the sentence awarded by Court below is too harsh and in spite of there being no cogent and reliable evidence to establish that there was a common intention with the applicants-appellants to commit the crime in question, yet Court below has convicted the applicants-appellants under Section 307/34 IPC and thus erroneously awarded aforementioned sentences. On the above conspectus, he, therefore, contends that the appeal is liable to be allowed by this Court.
7. According to the learned counsel for applicants-appellants, except for the applicant-Janak Singh, the other applicants-appellants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicant-appellant Janak Singh has criminal history of one case, which has duly explained and he is on bail in the case pending against him. On the above premise, he, therefore, contends that applicants-appellants are liable to be enlarged on bail, during the pendency of appeal. In case, the applicants-appellants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate in the hearing of present appeal.
8. Per contra, the learned A.G.A. for State-opposite party-1 and Mrs. Kalpana Singh, the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicants-appellants are convicted accused, therefore, they do not deserve any indulgence by this Court. Considering the facts and circumstances of the case that the injured received gun shot injury, therefore, no sympathy be shown by this Court in favour of present applicants-appellants. The commission of crime in question with a common intention on the part of applicants-appellants is writ large on the face of record. They, therefore, submit that the bail application filed by the applicants-appellants be rejected and the appeal itself be heard on merits.
9. Having heard, the learned counsel for applicants-appellants, the learned A.G.A. for State-opposite party-1, Mrs. Kalpana Singh, the learned counsel representing first informant and upon perusal of record, this Court finds that it is an undisputed fact that the role of causing fire arm injury to the injured is assigned to co-accused Lokesh. As such, the case of present applicants-appellants is clearly distinguishable from aforementioned co-accused. Apart from above, this Court finds merit in the submission of the learned counsel for applicants-appellants that there is no likelihood of the appeal being heard in near future. Applicants-appellants have already undergone one year and 4 months of incarceration. Since the act of assault upon the injured was committed only by one of the named accused, therefore, the issue as to whether there is common intention with the other accused has to be scrutinized threadbare. Prima-facie, since no overt or covert act is evident against the applicants-appellants, therefore, the submission urged by the learned counsel for applicants-appellants that the conviction of the applicants-appellants under Sections 307/34 IPC is prima-facie liable to be set aside by this Court, also merits consideration.
10. Consequently, the bail application succeeds and is liable to be allowed.
11. It is, accordingly, allowed.
12. Let the appellants-appellants, 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.
13. It is, however, provided that the amount of fine awarded by court below shall be deposited by applicants-appellants with the Court below within a period of 1 month from today failing which, the bail granted to applicants-appellants shall stand canceled and they shall be taken into custody at once to serve out the sentence awarded by Court below.
Order Date :- 27.5.2024
Vinay
