Vijay Shankar and Another vs State of U.P.

(Crl Misc. Application No. 48348 of 2010

This application u/s 389 Code of Criminal Procedure with the prayer for bail has been moved by Appellants Vijay Shankar and Ghanshyam. The Appellants have been convicted in Sessions Trial No. 579 of 1998 relating to crime No. 161 of 1997 under Sections 147, 148, 149, 307/149, 302.149 & 506 IPC by the Additional Sessions Judge (Court No. 10) Barabanki and have been sentenced to the maximum term of life imprisonment with fine.

We have heard learned Counsel for the Appellants and learned Additional Government Advocate on the prayer for bail and have gone through the judgment of the court below, the First Information Report, post mortem report of deceased Ram Prasad Dubey, and injury report of Smt. Chandrawati Exhibit-Ka. We have also gone through the statement of the prosecution witnesses.

As it comes out that the Appellants Vijay Shankar and Ghanshyam have been assigned the role of standing on the spot armed with lathi and Bhala along with the other accused persons who were armed with Pharsa, Banka and gun. The prosecution case is that the accused persons had attacked deceased Ram Prasad Dubey inflicting upon him eight incised wounds. Smt. Chandrawati, the wife of the deceased, who was sitting by the side of her husband, was also dealt with and she also received two incised wounds and one abrasion in the incident. Smt. Chandrawati was not examined in the trial. The incident has taken place at 10 am. The doctor conducting the post mortem of the deceased deposed that the injuries suffered by the deceased were caused by sharp cutting weapon, i.e. weapon like Banka, which is said to have been used by co-accused.

Grave stress has been laid by the learned Counsel for the Appellants -2 that the Appellants have been implicated along with all family members due to enmity; the doctor did not find any injury either on the person of the deceased nor on the person of injured Chadrawati which can be attributed to Bhala or Lathi; the Appellants were on bail during trial and they did not misuse the liberty of bail granted to them; and the appeal will take a long time to reach to its logical conclusion.

Taking into consideration the over all aspects of the matter, especially the fact that no injury was found either on the body of the deceased or the injured which can be attributed to the weapons with which the Appellants are said to be armed, we are of the opinion that the Appellants are entitled to be enlarged on bail.

Let Appellants Vijay Shankar and Ghanshyam, convicts of above mentioned Sessions Trial be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate, Barabanki.

Realization of half of the fine is stayed during pendency of the appeal. Remaining half of the fine shall be deposited by the Appellants within one month from the date of their release on bail.

The Chief Judicial Magistrate concerned shall transmit to this Court photo copies of the bail and surety bonds furnished by the Appellants to be kept on the record of the appeal.