Kripal, Raj Kumar and Dinesh vs State of U.P.

Amar Saran and S.C. Nigam, JJ.—Heard Shri P.N. Mishra, learned Senior Advocate for the appellants, Shri Ram Raj, learned Counsel for the complainant and learned Additional Government Advocate representing the State and perused the record of the case.

A prayer for bail has been made in this criminal appeal, which has been filed against the judgement and order dated 21.5.2003 in ST No. 173 of 2003 whereby the appellants have been convicted and sentenced to life imprisonment under Sections 302/34 IPC and a fine of Rs. 20,000/- and five years rigorous imprisonment u/s 307/34 IPC and a fine of Rs. 5000/-.

It is contended by the learned Counsel for the appellants that cross-reports were lodged in this case and both the cases have resulted in convictions on the finding that it was a case of free fight. It is argued by the learned Counsel for the appellants that three persons have received injuries from the side of the appellants-accused and two of the injuries, viz. injury No. 1 to the injured Dinesh, which was a punctured wound 1.5 cm. x 0.5 cm on the right side of the chest 10 cm above right nipple and injury No. 4 to the injured Raj Kumar, which was an incised wound 2.00 cm x 0.5 cm, whose depth could not be measured and the margin was clean cut and there was a pain on the stomach, the aforesaid injuries have been described as dangerous to life and the complainant side has also been convicted u/s 307 IPC. The said injuries have not been explained either in the FIR or in the statements u/s 161 of the Code of Criminal Procedure or in the evidence in Court It is further argued that unless it is specified as to which of the appellants-accused, three of whom were armed with lathi and one was armed with farsa, has caused the fatal injuries, all of the appellants ought not to have been implicated u/s 302 IPC.

Further, reliance has been placed by the learned Counsel for the appellants on the decision of Hon''ble Supreme Court in the case of Bashisth Singh and Anr. v. State oft Bihar 2004 SCC (Cri) 1127 for the proposition that where there are cross case (sic) and even if in one of these cases final report has resulted, the bail should be granted in the other case. In the present case, it is contended that the other case has resulted in conviction u/s 307 IPC.

Learned Counsel for the complainant, on the other hand, sought to argue that there is a dying declaration, but it is pointed out by the learned Counsel for the appellants that the said dying declaration was in the form of a statement u/s 161 Cr.P.C. to the police by Jaipal and the trial court has not relied upon it by holding that the statement of doctor has not been taken that the injured was in a; condition to make the said statement and moreover, the dying declaration suffers from the same shortcomings as the other evidence as it does not explain the substantial number of injuries to the side of the accused.

Learned Counsel for the complainant further tried to argue that bail should only be granted to Kripal Singh, who is said to be armed with farsa as there was no injury of sharp edged weapon on the side of the prosecution. We are not inclined to accept this submission of the learned Counsel.

Learned Counsel for the complainant further argued that there was an injunction in favour of the complainant.

Learned Counsel for the appellants has drawn our attention that litigation was going on between the parties and the investigating officer has not recorded any finding as to which side was in possession at the time of dispute and that was the basis for the court for recording the finding of free fight and not holding any side as an aggressor.

In this view of the matter, without making any comment on the merits of the case, let the appellants Kripal, Raj Kumar and Dineesh, convicted and sentenced in the aforesaid case, be released on bail on their a personal bond with two sureties each in the like amount to the satisfaction of the court concerned.

Three month'' time is allowed to the appellants to deposit the fine, which has not been stayed.