Goverdhan and Ors. vs State of U.P.

G. S. N. Tripathi, J.—This is an appeal under Section 449, Cr. P. C. directed against the order dated 1921979 passed by the then IVth Addl. Sessions Judge, Fatehpur, whereby he has ordered recovery of Rs. 2,000 each from both the appellants who stood surety for the accused Ram Phal. This case arises out of S. T. No. 306 of 1979. Accused Ram Phal was involved in this case. The appellants, admittedly stood surety for Ram Phal and they failed to produce him on the date fixed for trial on 1921979. Both the appellants were present before the learned Addl. Sessions Judge and they promised to produce the accused Ram Phal on 2531979. They also gave a specific statement that in case they failed to do so, they would deposit the surety amount.

In the record, there is an application of Shanker Lal, one of the sureties who has alleged in paragraph 4 that Ram Phal accused had been murdered in 1978 in village Jalalpur, P. S. Marka, Distt. Banda.

It is really strange that if the accused had been murdered in 1978, as a matter of fact, the surety would give an undertaking on 1921979 before the learned Addl. Sessions Judge that they would produce the accused on 2531979. The burden of proving the death/murder of the accused Ram Phal was squarely upon the sureties. But for a mere affidavit, which is very, erroneous, no evidence on the record is available, so the learned Addl. Sessions Judge was perfectly justified in ordering recovery of surety bond amount as the appellants tailed to perform their promise inasmuch as they tailed to produce the accused on the date fixed. No error has been shown in the order of the learned Addl. Sessions Judge. Thus the appeal has no force.

The appeal is dismissed. The appellants are given one month''s time to deposit the amount, failing which, the lower court would be justified in recovering this amount in accordance with law.