Mohd. Taha vs State of U.P.

Heard learned Counsel appearing for applicant/Appellant-Mohd. Taha and the learned Additional Government Advocate on this second application for bail in pending appeal.

The Appellant has been convicted under Sections 302/34, 307/34 and 323/34 IPC vide judgment and order dated 29.11.2008 passed by the learned Additional District/Fast Track Court No. 1, District Rae Bareli in Sessions Trial No. 368 of 2004. He has been sentenced for maximum term of life imprisonment with fine stipulation.

The earlier prayer for bail was refused by this Court as not pressed since none appeared to argue the same.

We have also gone through the judgment and record of lower court. It comes out that the FIR was lodged by the complainant against unknown persons; during the course of investigation name of the Appellant had not come into light even in the statement of witnesses recorded u/s 161 Cr.P.C; later on since the complainant gave an affidavit to the Circle Officer with respect to participation of the Appellant and other accused persons after about four and a half months from the date of incident, name of the Appellant had seen light of the day.

It has been argued by the learned Counsel for the Appellant that the aforesaid fact goes to show that nobody had seen the occurrence. If any one was eyewitness and had witnessed the occurrence, the Appellant ought to have been named either at the time of registration of the FIR or during the course of recording statement u/s 161 Cr.P.C., but his name came into light in pursuance of an affidavit given by the complainant to the Circle Officer. It is stated that the Appellant was on bail during the course of trial and did not misuse the liberty of bail granted to him. It is also stated that the appeal is of the 2009 and there is no likelihood of the same being heard and decided in near future.

While going through the judgment the learned Additional Government Advocate conceded on this aspect of the matter although there are three injured witnesses, who are said to have received injuries in the incident, but they all kept mum during the course of investigation and had not disclosed name of the Appellant.

After taking into consideration overall aspects of the matter and without commenting any further on merit of the case, we find it tobe a fit case for bail.

Let Appellant Mohd. Taha, convict of the aforesaid sessions trial, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief JudicialMagistrate concerned.

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

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