Munni Lal vs State of U.P.

Heard Shri Arun Sinha, learned counsel for the appellants, as well as learned Additional Government Advocate for the State on these applications for bail moved by the convicts-appellants u/s 389 Cr.P.C. in pending appeals.

As all the above mentioned applications arise out of one and the same judgment, as such, they are being taken up together and disposed of by this common order.

These appeals have been preferred by the appellants against judgment and order of conviction dated 15.09.2010 passed by learned Additional Sessions Judge, FTC-III, Court No. 12, Sultanpur in Sessions Trial No. 75 of 1995 whereby they have been convicted u/s 302/34 IPC and sentenced for the maximum period of life imprisonment with fine stipulation.

We have gone through the judgment as well as record of the court below.

It comes out that the incident had taken place on 26.08.1994 at about 04.30 pm of which FIR was lodged on the same day at about 05.30 pm whereas distance of the police station from the place of occurrence is said to be 5 km. The FIR was lodged by Daan Bahadur Singh (PW-2). In the said incident one Hira Singh was subjected to injuries by the accused-appellants by bomb, firearm and Farsadue to which he succumbed to the injuries. In the incident Jagdish Prasad (PW-1) also received injuries.

Argument advanced by learned counsel for the appellants is that the prosecution in support of its case has produced three witnesses i.e. PW-1, PW-2 & Harikesh Singh (PW-3), who happen to be injured, complainant and eye witness of the occurrence respectively and all of them had been declared hostile. After the aforesaid three witnesses were declared hostile, an application was moved after more than seven years by three other persons, namely, Bhanu Pratap (PW-4), Sant Prasad Singh (PW-5) and Shiv Murti Singh (PW-6) that since they had also witnessed the scene of occurrence and their names have been shown in the charge sheet as witnesses, as such, their statement be recorded. The court rejected their application but on second application having been moved by them their evidence was recorded during the course of trial in the shape of PW-4, PW-5 & PW-6 respectively. Further argument is that it is a cooked up case since the names of PW-4, PW-5 & PW-6 were shown as witnesses in the charge sheet but they did not turn up nor prosecution had cared to produce them and when three witnesses i.e. PW-1, PW-2 & PW-3 had turned hostile, from the date of occurrence after about seven years these witnesses were cooked up their statement u/s 161 Cr.P.c. was never recorded but on an application on their part was moved which was rejected at the first instance, but the same was accepted on the second time and their statements had been recorded during the course of trial without giving them a chance to confront their statement u/s 161 Cr.P.C. It has also been argued that Bhanu Pratap Singh (PW-4) is first cousin of Hira Singh (deceased) and Sant Prasad (PW-5) and Shiv Murti Singh (PW-6) are convicts with respect to murder of one Ram Shiromani, father of one of the accused-appellant, namely, Sanjay Upadhyay, as such, their testimony in the said circumstances could not have been recorded and believed. It is further submitted that the entire judgment of conviction is based upon the testimony of only three witnesses i.e. PW-4, PW-5 & PW-6.

There seems to be some substance in the argument of learned counsel for the appellants.

It has also been submitted that the appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. The appeals are of the year 2010 and they will take considerable long time for reaching to their logical conclusion.

Taking into consideration the overall aspect of the matter, we find it a fit case for releasing the appellants on bail.

Let appellants, namely, Munni Lal, Sanjay Upadhyay, Anand Kumar Upadhyay alias Nandoo, Jawahar Lal, Nawal Kishore Upadhyay, convicts of aforesaid Sessions Trial, be released on bail on each of them furnishing personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate, Sultanpur.

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.

The court below is directed to transmit to this Court forthwith photocopies of bond and sureties filed by appellants to be preserved in the record maintained here.