Sumeshar and Another vs State of U.P.

Heard learned Counsel for Appellants and learned Additional Government Advocate on the application for bail moved u/s 389 Code of Criminal Procedure along with pending criminal appeal.

The Appellants have been convicted by learned Additional Sessions Judge, Court No. 2, district Gonda vide judgment and order dated 12.10.2009 passed in Sessions Trial No. 225 of 1984, under Sections 302, 324 and 325 Indian Penal Code and sentenced for the maximum term of life imprisonment with fine stipulation.

We have gone through the impugned judgment as well as lower court record including statements of witnesses, post-mortem report of the deceased and injury report of Appellants Someshwar and Hari Ram.

The incident is said to have taken place on 8.4.1984 at 5.30 p.m. of which FIR was lodged on the same day at the police-station concerned situate at a distance of four and half kilometer away. Ram Lakhan, complainant, could not be examined since he died during the course of trial.

After hearing learned Counsel for the parties on merits, we do not find any justified reason to release the Appellants on bail but seeing the age of Someshwar, Appellant No. 1, who had stated his age 74 years in his statement recorded u/s 313 Code of Criminal Procedure on 29th August, 2009 and, at present, he is aged about 76 years and is also ailing from heart ailment and admittedly he has been provided pace-maker and is in jail, on the ground of age, we think that Appellant Someshwar may be released on bail. The prayer for bail of Appellant Hari Ram is refused.

Let Appellant Someshwar convict of above mentioned Sessions Trial be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Gonda.

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

Learned Magistrate shall transmit to this Court photo copies of the bail and surety bonds furnished by the Appellant to be preserved in the appeal.