Bandha vs State of U.P.

Since aforesaid applications for bail moved u/s 389 Cr.P.C. in pending appeals arise out of one and the same sessions trial, as such, they are being taken up together and disposed of by this common order.

Heard learned counsel for the appellants, learned Additional Government Advocate as well as Shri Rajendra Singh Kushwaha, learned counsel appearing for complainant.

Appellants-Bandha, Gur Dayal and Rajendra are convicts of Sessions Trial No. 633 of 2000. They have been convicted under Sections 302 and 302/34 IPC and sentenced for maximum term of life imprisonment with fine stipulation vide judgment and order dated 25.08.2009 passed by learned Additional Sessions Judge, Court No. 4, Lakhimpur Kheri.

We have gone through the judgment and record of lower court.

It comes out that FIR was lodged by Suresh Singh alleging therein that when Panchayat was going on in village with respect to some disputed land between the accused party on one hand and on the other complainant party i.e. appellants, including Shiv Singh, who died later on during course of trial and the case against him abated, came on the spot carrying Kanta, Saria and Lathi and inflicted their blows on father of the complainant, namely, Kundan, who after receiving injuries fell on the ground and became unconscious. On hue and cry being raised, when people present over there interfered then the accused persons went away from the spot; Suresh Singh (PW-1), son of Kundan, took his father to the police station and lodged the FIR at 9:15 a.m. u/s 307 IPC and when Kundan was hospitalized and succumbed to the injuries on the same day at 7:20 p.m. the case was converted u/s 302 IPC.

It has been argued by the learned counsel for the appellants that there were 4 accused persons, who wielded Kanta, Saria and Lathi blows on the victim due to which he received 4 injuries. Out of the four persons, 2 persons were armed with Lathi and one accused, namely, Shiv Singh died during the course of trial. As per opinion of the doctor, the injuries received on the head of the victim proved fatal, which ultimately resulted in his death, but who caused the fatal blow is not certain. The conviction of appellant-Bandha u/s 302 IPC simplicitor is not justified and on what basis the court below has come to the conclusion that Bandha is a person, who caused one of the three head injuries, which proved fatal. It is also submitted that there are discrepancies in injury report and post-mortem report of the deceased since in the injury report one incised wound was found by the doctor, but in the post-mortem report no incised wound was found which goes against the prosecution case. Suresh Singh (PW-1) in his cross-examination has admitted that at the time of incident Bandha was not present and he came later although it has been rebutted by the learned counsel for the complainant as well as learned Additional Government Advocate. It is stated that the appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. It is also stated that the appeals are of the year 2009 and there is no likelihood of the same being heard and decided in near future.

After hearing the learned counsel for the parties and after assessing and evaluating the evidence led by the prosecution, we find that there is dent in the prosecution version.

According, we direct that appellants-Bandha, Gur Dayal and Rajendra, convicts of aforesaid sessions trial, be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate concerned.

Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the appellants within one month from the date of their release on bail.

Chief Judicial Magistrate concerned is directed to transmit to this Court photocopies of bond and sureties filed by the appellants to be preserved in the record maintained here.