Rama Shanker Pandey vs State of U.P.

Heard Learned Counsel for the appellant/applicant and the learned Additional Government Advocate on this application moved u/s 389 Cr.P.C. for bail in pending appeal.

This criminal appeal has been preferred by the appellant/applicant-Rama Shanker Pandey against the judgment and order dated 18.12.2010 passed by the learned Additional Sessions Judge (Special Judge, E.C. Act), Faizabad in Sessions Trial No. 323 of 1993 relating to Case Crime No. 35 of 1989, Police Station Bewana, District Faizabad whereby he has been convicted under Sections 147, 148, 302/149, 307/149 & 149 IPC and has been sentenced for maximum term of life imprisonment with fine stipulation.

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

It is a case where an F.I.R. was lodged on 07.03.1989 at about 3.30 p.m. by one Prabhakar Pandey son of Ram Acchhevar who was examined as PW-1 with respect to an incident which is said to have committed by the accused-appellant along with other co-accused persons on 06.03.1989 at about 2.00 p.m.

The prosecution case is that on the fateful day i.e. on 06.03.1989 at about 2.00 p.m. when the complainant Prabhakar Pandey along with his father Ram Acchhevar was returning after making complaint at the police station against accused-persons the accused-persons who are six in numbers came in the way of Prabhakar Pandey and his father Ram Acchhevar and started firing from their guns upon them, then Prabhakar Pandey and Ram Acchhevar ran into the shop of one Devi Prasad Singh who is a doctor and at the same time, while his grand father namely Bansh Raj who was coming to the shop of the doctor was caught hold by the accused-persons and have inflicted butt blows from their respective fire arms upon Bansh Raj due to which he fell down and blood was found oozing from his ears and from there he was taken to hospital where he succumbed to the injuries on the next day i.e. on 07.03.1989.

As it comes out from the post mortem report that the deceased had received one contusion with blackening, two lacerated wounds and two pointed punctured wounds.

Argument advanced by the Learned Counsel for the applicant/appellant is that no doubt as per prosecution case the father of complainant namely Ram Acchhevar was also injured in the alleged incident but he was not examined, although in the F.I.R. the appellant/applicant was named as an accused while using single barrel gun giving butt blows upon Bansh Raj but nowhere it finds place in the statement of PW-1, Prabhakar Pandey recorded before the court. It has further been averred that respective weapons of the accused-appellants which ought to have been used in a natural manner but they have not used it in a correct manner and also there was no occasion on the part of the accused-appellant that they used only butt of the guns while causing injuries upon Bansh Raj while they do not have any grudge against Bansh Raj. It is stated that the appellant was on bail during the course of trial and he did not misuse the liberty of bail granted to him. It is also stated that the appeal is of the year 2011 itself and there is no likelihood of the same being heard and decided in near future.

Taking overall aspect of the matter and particularly seeing that the deceased has not received any gun shot injury rather he has received one contusion with blackening, two lacerated wounds and two pointed wounds, therefore, we find it a fit case for bail.

Let appellant-Rama Shanker Pandey, convict of aforesaid sessions trial number, be released on bail on his 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 appellant/applicant 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 applicant/appellant to be preserved in the record maintained here.