Allahabad High Court

: Avinash Kumar Srivastava, Anil Kumar Pandey, Anupam Bajpai, Avinash Kumar Srivastava, Pawan Kumar Dwivedi, Ranjan Srivastava, Salman Abbas, Sandeep Kumar Counsel for Respondent(s) : G.A., Arvind Kumar Court No. - 13 (On Appeal)

1. Heard. HON'BLE SAURABH LAVANIA, J.

2. List/put up this appeal for hearing on its turn. (On C.M. Application No. 1 of 2024)

3. This application under Section 430 B.N.S.S., akin to Section 389 Cr.P.C. (now repealed), seeking suspension of sentence and enlarging the appellant on bail has been moved in the instant criminal appeal arising out of judgment passed in Sessions Trial No. 922 of 2012, Case Crime No. 148 of 2012, under Sections- 147, 148, 304/34, 323/34, 336/34, 504, 506 I.P.C., P.S.- Jahangirabad, District- Barabanki.

4. While pressing the application seeking suspension of sentence and enlarging the appellant on bail, learned counsel for the appellant stated that while passing the judgment of conviction, under appeal, dated 19.12.2023, the trial court namely Additional Sessions Judge, Court No. 2, Barabanki convicted Ram Prakash (appellant No. 1 herein), Umesh, Deshraj @ Munna, Mansharam and Ranjit (appellant No. 2 herein) for the offences punishable under Sections- 147, 148, 304/34, 323/34, 336/34, 504, 506 I.P.C. and the maximum period of sentence awarded by the trail court is 10 years for the offence punishable under Section 304/34 IPC.

5. It is further stated that Ram Prakash (appellant No. 1 herein) has already been granted bail by this Court vide order dated 27.04.2024 passed in this appeal. The order dated 27.04.2024, referred, is extracted hereunder:- "(Order on appeal) List this appeal on 24.05.2024 for hearing. (Order on Bail)

1. Learned counsel for the appellants/ applicants at the outset submits that he is not pressing the bail application so far as the appellant/ applicant No.2- Ranjit is concerned and the same be dismissed as not pressed at this stage.

2. No objection in this regard has been raised by learned AGA.

3. Having regard to the request made on behalf of the appellant/ applicant No.2- Ranjit, 2 CRLA No. 169 of 2024 his bail application is dismissed as not pressed.

4. Heard Ms. Nisha Srivastava, learned counsel for the appellant/ applicant as well as learned A.G.A. for the State and perused the record.

5. The instant application for bail during pendency of this criminal appeal has been preferred by appellant/ applicant- Ram Prakash, as he has been convicted vide judgment and order dated 19.12.2023 passed by the Additional Sessions Judge, Court No.-02, Barabanki in Session Trial No.922 of 2012, arising out of Crime No.148/ 2012, Police Station -Jahangirabad, District- Barabanki and sentenced as follows:- i. Under Section 147 I.P.C., rigorous imprisonment for a period of one year. ii. Under Section 148 I.P.C., rigorous imprisonment for a period of two years along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month. iii. Under Section 304/34 I.P.C., rigorous imprisonment for a period of ten years along with fine of Rs.20,000/- and in default of payment of fine, further imprisonment for a period of one year. iv. Under Section 323/34 I.P.C., simple imprisonment for a period of six months along with fine of Rs.500/- and in default of payment of fine, further imprisonment for a period of fifteen days. v. Under Section 336/34 I.P.C., rigorous imprisonment for a period of three months along with fine of Rs.500/- and in default of payment of fine, further imprisonment for a period of fifteen days. vi. Under Section 504 I.P.C., simple imprisonment for a period of one year along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month. vii. Under Section 506 I.P.C., simple imprisonment for a period of three years along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month.

6. Learned counsel for the appellant/ applicant submits that it is a case of false implication. The trial Court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellant/ applicant for the offences, which have never been committed by him.

7. It is vehemently submitted that the FIR of the instant case was lodged as a non- cognizable report and thereafter was converted into a cognizable one and there was a cross case of the instant incident, wherein six persons from the side of the appellant/ applicant had sustained injuries and there was ample evidence available on record, which may suggest that the informant's party of this case was an aggressor, therefore, the appellant/ applicant was having a right to defend his body and even if, the said right has not been claimed by the accused person/ appellant/ applicant, it was the duty of the trial Court to have inferred that right from the proved facts and circumstances of the case and therefore, a material illegality has been committed by the trial Court.

8. It is further submitted that three persons are shown to have sustained injuries from the side of the informant of the instant case, namely, Shailendra, Dinesh and Jaichand and one of the injured, namely, Kamlesh has succumbed to the injuries and the post mortem report with regard to Kamlesh would reveal that he had sustained three injuries, out of which, one injury sustained on his head just below his left ear has been found fatal and the same injury, as per the case of the prosecution, could only be attributed to the co-convict Ranjit, to whom the role of assault with a Kudal has been assigned.

9. It is vehemently submitted that even if the case of the prosecution is believed as it is, the 3 CRLA No. 169 of 2024 incident had occurred in a spur of moment and there was no premeditation and thus, there was no time available for the accused person/ appellant/ applicant to have shared a common intention to cause the death of the deceased Kamlesh and therefore, the act of the co-convict Ranjit would have to be seen in isolation.

10. It is further submitted that during the course of trial, the appellant/ applicant was on bail and he has not misused the liberty. He is not having any criminal antecedents and is in jail in this case since 19.12.2023. There is no apprehension that after being released on bail, he may flee from the course of law or may otherwise misuse the liberty.

11. Learned A.G.A., on the other hand, opposes the prayer of bail of the appellant/ applicants on the ground that apart from the substantive offences, the appellant/ applicant has been convicted with the aid of Section 147 and 148 IPC, thus, he has formed an unlawful assembly and acted in achievement of the same.

12. Having heard learned counsel for the parties and having perused the record, it is reflected that it is a case of cross cases. None of the parties i.e. informant's party or appellant's party, have claimed right of private defence and the trial court appears to have convicted both parties on account of role played by them, which prima facie suggests that the trial Court was of the view that none of the party was having right to defend their body or property, as the case may be. Three persons are shown to have sustained injuries from the side of the informant, while six persons are stated to have sustained injuries of simple nature from the side of the appellant/ applicant. With regard to the F.I.R lodged from the side of the appellant/ applicant, three persons from the side of the informant of the instant case have been convicted by the trial Court by passing a separate judgment. The role of the instant appellant/ applicant appears to be distinguishable from the role of co- convict Ranjit, to whom the role of assault on the head of the deceased has been assigned with the help of Kudal. Admittedly, the appellant/ applicant was on bail during the course of trial and nothing has been brought before this Court, which may suggest that he has misused the liberty. The conviction of the appellant/ applicant is also with the help of Section 147 and 148 IPC. Thus, having regard to all the facts and circumstances of the case, in the considered opinion of this Court, a case of bail is emerging in favour of the appellant/ applicant.

13. In result, the bail application moved on behalf of the appellant/ applicant is hereby allowed.

14. Let the appellant/applicant- Ram Prakash, convict of the aforesaid case, be released on bail during the pendency of this appeal on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the of the court concerned, subject to the following conditions:- (i) Half of the amount of the fine, as imposed by the special/trial court, shall remain stayed on the condition that remaining 50% amount of fine so imposed by the special/trial Court, be deposited by the appellant-applicant within 30 days from his actual release from prison. (ii) The appellant-applicant shall cooperate in the early disposal of the appeal, without seeking unnecessary adjournments. (iii) The appellant-applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail of the appellant-applicant.

16. The special/trial Court is directed to transmit to this Court photocopies of personal bond and bail bonds which would be filed by the appellant-applicant before the court below while preserving the copies of the same in his record."

6. It is further stated that other co-accused namely Deshraj @ Munna, Mansharam and Umesh have also been granted bail by this Court vide order dated 27.04.2024 passed 4 CRLA No. 169 of 2024 in Criminal Appeal No. 77 of 2024 connected with Criminal Appeal No. 297 of 2024.

7. It is further stated that the appellant is languishing in jail since 19.12.2023 i.e. the date of judgment of conviction.

8. It is further stated that a perusal of story of prosecution indicated in paragraph 2 of judgment of conviction dated 19.12.2023 would indicate that without premeditation of mind on the spur of moment, the incident occurred in which the appellant caused fatal injury to the deceased with 'Kudal' and in this view of the matter, the case of prosecution against the appellant would fall under Section 304 Part II IPC and as such, the trial court ought to have convicted the appellant(s) for the offence under Section 304 Part II IPC and ought to have invoked the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

9. Further submission is that prior to the aforesaid period of incarceration, the appellant was in jail and was released on bail and he never misused the liberty of bail so granted.

10. Learned A.G.A. vehemently opposed the prayer for bail and submitted that the court below has passed the impugned order after considering the evidence placed before it at the time of trial and there is no illegality in the same. However, he does not dispute the fact that appellant was on bail during the course of trial and he never misused the liberty of bail.

11. Considering the arguments advanced by the learned counsel for the appellant, learned A.G.A. and the judgment of the trial court as also the fact that appellant was on bail during trial and he never misused the liberty as also the fact that the chances of final hearing in this appeal in near future are bleak, this Court is of the view that it would be appropriate to suspend the sentence of the applicant/appellant and to grant bail to the applicant/appellant till the outcome of the instant appeal.

12. Accordingly, the bail application is allowed. The sentence imposed by the trial court shall remain suspended during pendency of present appeal.

13. Let the applicant-appellant- Ranjit involved in aforesaid Case Crime Number be released on bail on depositing the amount of fine within a period of three weeks from the date of his release and furnishing personal bond of Rs.25,000/- and two sureties each in the like amount, subject to following conditions: (i) The appellant shall cooperate in the early disposal of appeal without seeking unnecessary adjournment. (ii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

14. As soon as personal bonds and sureties are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial court concerned to be kept on record of this appeal.

15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. October 13, 2025 Arun/- (Saurabh Lavania,J.)

: Avinash Kumar Srivastava, Anil Kumar Pandey, Anupam Bajpai, Avinash Kumar Srivastava, Pawan Kumar Dwivedi, Ranjan Srivastava, Salman Abbas, Sandeep Kumar Counsel for Respondent(s) : G.A., Arvind Kumar Court No. - 13 (On Appeal)

1. Heard. HON'BLE SAURABH LAVANIA, J.

2. List/put up this appeal for hearing on its turn. (On C.M. Application No. 1 of 2024)

3. This application under Section 430 B.N.S.S., akin to Section 389 Cr.P.C. (now repealed), seeking suspension of sentence and enlarging the appellant on bail has been moved in the instant criminal appeal arising out of judgment passed in Sessions Trial No. 922 of 2012, Case Crime No. 148 of 2012, under Sections- 147, 148, 304/34, 323/34, 336/34, 504, 506 I.P.C., P.S.- Jahangirabad, District- Barabanki.

4. While pressing the application seeking suspension of sentence and enlarging the appellant on bail, learned counsel for the appellant stated that while passing the judgment of conviction, under appeal, dated 19.12.2023, the trial court namely Additional Sessions Judge, Court No. 2, Barabanki convicted Ram Prakash (appellant No. 1 herein), Umesh, Deshraj @ Munna, Mansharam and Ranjit (appellant No. 2 herein) for the offences punishable under Sections- 147, 148, 304/34, 323/34, 336/34, 504, 506 I.P.C. and the maximum period of sentence awarded by the trail court is 10 years for the offence punishable under Section 304/34 IPC.

5. It is further stated that Ram Prakash (appellant No. 1 herein) has already been granted bail by this Court vide order dated 27.04.2024 passed in this appeal. The order dated 27.04.2024, referred, is extracted hereunder:- "(Order on appeal) List this appeal on 24.05.2024 for hearing. (Order on Bail)

1. Learned counsel for the appellants/ applicants at the outset submits that he is not pressing the bail application so far as the appellant/ applicant No.2- Ranjit is concerned and the same be dismissed as not pressed at this stage.

2. No objection in this regard has been raised by learned AGA.

3. Having regard to the request made on behalf of the appellant/ applicant No.2- Ranjit, 2 CRLA No. 169 of 2024 his bail application is dismissed as not pressed.

4. Heard Ms. Nisha Srivastava, learned counsel for the appellant/ applicant as well as learned A.G.A. for the State and perused the record.

5. The instant application for bail during pendency of this criminal appeal has been preferred by appellant/ applicant- Ram Prakash, as he has been convicted vide judgment and order dated 19.12.2023 passed by the Additional Sessions Judge, Court No.-02, Barabanki in Session Trial No.922 of 2012, arising out of Crime No.148/ 2012, Police Station -Jahangirabad, District- Barabanki and sentenced as follows:- i. Under Section 147 I.P.C., rigorous imprisonment for a period of one year. ii. Under Section 148 I.P.C., rigorous imprisonment for a period of two years along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month. iii. Under Section 304/34 I.P.C., rigorous imprisonment for a period of ten years along with fine of Rs.20,000/- and in default of payment of fine, further imprisonment for a period of one year. iv. Under Section 323/34 I.P.C., simple imprisonment for a period of six months along with fine of Rs.500/- and in default of payment of fine, further imprisonment for a period of fifteen days. v. Under Section 336/34 I.P.C., rigorous imprisonment for a period of three months along with fine of Rs.500/- and in default of payment of fine, further imprisonment for a period of fifteen days. vi. Under Section 504 I.P.C., simple imprisonment for a period of one year along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month. vii. Under Section 506 I.P.C., simple imprisonment for a period of three years along with fine of Rs.1,000/- and in default of payment of fine, further imprisonment for a period of one month.

6. Learned counsel for the appellant/ applicant submits that it is a case of false implication. The trial Court has committed manifest illegality in appreciating the evidence available on record and has convicted the appellant/ applicant for the offences, which have never been committed by him.

7. It is vehemently submitted that the FIR of the instant case was lodged as a non- cognizable report and thereafter was converted into a cognizable one and there was a cross case of the instant incident, wherein six persons from the side of the appellant/ applicant had sustained injuries and there was ample evidence available on record, which may suggest that the informant's party of this case was an aggressor, therefore, the appellant/ applicant was having a right to defend his body and even if, the said right has not been claimed by the accused person/ appellant/ applicant, it was the duty of the trial Court to have inferred that right from the proved facts and circumstances of the case and therefore, a material illegality has been committed by the trial Court.

8. It is further submitted that three persons are shown to have sustained injuries from the side of the informant of the instant case, namely, Shailendra, Dinesh and Jaichand and one of the injured, namely, Kamlesh has succumbed to the injuries and the post mortem report with regard to Kamlesh would reveal that he had sustained three injuries, out of which, one injury sustained on his head just below his left ear has been found fatal and the same injury, as per the case of the prosecution, could only be attributed to the co-convict Ranjit, to whom the role of assault with a Kudal has been assigned.

9. It is vehemently submitted that even if the case of the prosecution is believed as it is, the 3 CRLA No. 169 of 2024 incident had occurred in a spur of moment and there was no premeditation and thus, there was no time available for the accused person/ appellant/ applicant to have shared a common intention to cause the death of the deceased Kamlesh and therefore, the act of the co-convict Ranjit would have to be seen in isolation.

10. It is further submitted that during the course of trial, the appellant/ applicant was on bail and he has not misused the liberty. He is not having any criminal antecedents and is in jail in this case since 19.12.2023. There is no apprehension that after being released on bail, he may flee from the course of law or may otherwise misuse the liberty.

11. Learned A.G.A., on the other hand, opposes the prayer of bail of the appellant/ applicants on the ground that apart from the substantive offences, the appellant/ applicant has been convicted with the aid of Section 147 and 148 IPC, thus, he has formed an unlawful assembly and acted in achievement of the same.

12. Having heard learned counsel for the parties and having perused the record, it is reflected that it is a case of cross cases. None of the parties i.e. informant's party or appellant's party, have claimed right of private defence and the trial court appears to have convicted both parties on account of role played by them, which prima facie suggests that the trial Court was of the view that none of the party was having right to defend their body or property, as the case may be. Three persons are shown to have sustained injuries from the side of the informant, while six persons are stated to have sustained injuries of simple nature from the side of the appellant/ applicant. With regard to the F.I.R lodged from the side of the appellant/ applicant, three persons from the side of the informant of the instant case have been convicted by the trial Court by passing a separate judgment. The role of the instant appellant/ applicant appears to be distinguishable from the role of co- convict Ranjit, to whom the role of assault on the head of the deceased has been assigned with the help of Kudal. Admittedly, the appellant/ applicant was on bail during the course of trial and nothing has been brought before this Court, which may suggest that he has misused the liberty. The conviction of the appellant/ applicant is also with the help of Section 147 and 148 IPC. Thus, having regard to all the facts and circumstances of the case, in the considered opinion of this Court, a case of bail is emerging in favour of the appellant/ applicant.

13. In result, the bail application moved on behalf of the appellant/ applicant is hereby allowed.

14. Let the appellant/applicant- Ram Prakash, convict of the aforesaid case, be released on bail during the pendency of this appeal on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the of the court concerned, subject to the following conditions:- (i) Half of the amount of the fine, as imposed by the special/trial court, shall remain stayed on the condition that remaining 50% amount of fine so imposed by the special/trial Court, be deposited by the appellant-applicant within 30 days from his actual release from prison. (ii) The appellant-applicant shall cooperate in the early disposal of the appeal, without seeking unnecessary adjournments. (iii) The appellant-applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail of the appellant-applicant.

16. The special/trial Court is directed to transmit to this Court photocopies of personal bond and bail bonds which would be filed by the appellant-applicant before the court below while preserving the copies of the same in his record."

6. It is further stated that other co-accused namely Deshraj @ Munna, Mansharam and Umesh have also been granted bail by this Court vide order dated 27.04.2024 passed 4 CRLA No. 169 of 2024 in Criminal Appeal No. 77 of 2024 connected with Criminal Appeal No. 297 of 2024.

7. It is further stated that the appellant is languishing in jail since 19.12.2023 i.e. the date of judgment of conviction.

8. It is further stated that a perusal of story of prosecution indicated in paragraph 2 of judgment of conviction dated 19.12.2023 would indicate that without premeditation of mind on the spur of moment, the incident occurred in which the appellant caused fatal injury to the deceased with 'Kudal' and in this view of the matter, the case of prosecution against the appellant would fall under Section 304 Part II IPC and as such, the trial court ought to have convicted the appellant(s) for the offence under Section 304 Part II IPC and ought to have invoked the provisions of the Probation of Offenders Act, 1958 (hereinafter referred to as 'Act, 1958').

9. Further submission is that prior to the aforesaid period of incarceration, the appellant was in jail and was released on bail and he never misused the liberty of bail so granted.

10. Learned A.G.A. vehemently opposed the prayer for bail and submitted that the court below has passed the impugned order after considering the evidence placed before it at the time of trial and there is no illegality in the same. However, he does not dispute the fact that appellant was on bail during the course of trial and he never misused the liberty of bail.

11. Considering the arguments advanced by the learned counsel for the appellant, learned A.G.A. and the judgment of the trial court as also the fact that appellant was on bail during trial and he never misused the liberty as also the fact that the chances of final hearing in this appeal in near future are bleak, this Court is of the view that it would be appropriate to suspend the sentence of the applicant/appellant and to grant bail to the applicant/appellant till the outcome of the instant appeal.

12. Accordingly, the bail application is allowed. The sentence imposed by the trial court shall remain suspended during pendency of present appeal.

13. Let the applicant-appellant- Ranjit involved in aforesaid Case Crime Number be released on bail on depositing the amount of fine within a period of three weeks from the date of his release and furnishing personal bond of Rs.25,000/- and two sureties each in the like amount, subject to following conditions: (i) The appellant shall cooperate in the early disposal of appeal without seeking unnecessary adjournment. (ii) The appellant shall not indulge in any criminal activity or commission of any crime after being released on bail.

14. As soon as personal bonds and sureties are furnished, photocopies of the same are directed to be transmitted to this Court forthwith by the trial court concerned to be kept on record of this appeal.

15. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. October 13, 2025 Arun/- (Saurabh Lavania,J.)