High Court

Heard learned counsel for the appellant and learned A.G.A. for the State. The appellant/applicant, Dipu Harijan, seeks bail in this appeal, which has been preferred against the judgment and order dated 18.01.2024 passed by learned Sessions Judge, Gonda in Sessions Trial No.23/2020, arising out of Case Crime No.241/2019, under Sections 323/34, 304/34, 504 I.P.C., Police Station Umari Begumganj, District Gonda, convicting and sentencing the appellant under Section 304 I.P.C. for ten years rigorous imprisonment alongwith fine of Rs.20,000/- and in default of payment of fine, the appellant was directed to undergo further simple imprisonment of six months. According to the prosecution case as mentioned in the F.I.R., it is alleged that on 28.11.2019 when the father of complainant was coming back from field after easing, he was assaulted by lathi, danda and fists due to old enmity. After hearing hue and cry, the nearby villagers gathered there and out of them, Mukesh Kumar and Durgam Kumar called Ambulance by dialing 108 and got admitted the deceased in the District Hospital, Gonda from where he was referred to Medical College, Lucknow but he was not admitted there due to non availability of bed rather he was referred to Ram Manohar Lohia Hospital, Lucknow. Learned counsel for the appellant submits that the appellant is innocent and has not committed any offence as alleged by the prosecution. He further submits that the F.I.R. is lodged after twelve days of incident without any plausible explanation and even the prosecution has failed to show any document from which the deceased was referred from the District Hospital, Gonda to the Medical College, Lucknow. He further submits that even the District Hospital, Gonda had also not intimated the police about the deceased and his injuries, thus, it creates doubt over the prosecution story. He further submits that there is no dying declaration of the deceased to support the prosecution case. Learned counsel for the appellant further submits that there are major contradictions in the evidences produced by the prosecution witnesses and the prosecution has also failed to brought any medical evidence on record to prove the fact that the deceased was ever medically treated anywhere after 01.12.2019. He further submits that even the inquest proceeding on the dead body of the deceased was conducted at the house of the deceased on 11.12.2019, as such, the prosecution story that the deceased died during treatment is also false. Learned counsel for the appellant further submits that two co- accused persons having similar role have been acquitted for the offence under Sections 304/34 and 504 I.P.C. while the present appellant has been convicted for the offence under Section 304 I.P.C. despite the fact that in the F.I.R. as well as in the statements recorded under Section 161 Cr.P.C., general role of causing injuries by lathi, danda and fists have been assigned to all the three persons. Learned counsel for the appellant further submits that the appellant was arrested on 12.12.2019 and during trial he was released on bail by co-ordinate Bench of this Court vide order dated 19.01.2022 passed in Criminal Misc. Bail Application No.15388 of 2021. He further submits that the appellant has never misused the liberty of bail. He further submits that there is no likelihood of this appeal to be heard at an early date or in near future. He further submits that the appellant does not have any criminal history. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of this appeal being allowed after final hearing takes place. Learned A.G.A. has opposed the prayer for bail. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early hearing and conclusion of appeal, this Court is of the view that the appellant may be enlarged on bail. Let the appellant- Dipu Harijan convicted and sentenced in Sessions Trial No.23/2020, arising out of Case Crime No.241/2019, under Sections 323/34, 304/34, 504 I.P.C., Police Station Umari Begumganj, District Gonda, be released on bail on his executing personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is made clear that fine, if any, is not stayed and the same be deposited by the appellant within one month after he is enlarged on bail. On acceptance of bail bond and personal bond, the trial court concerned shall transmit the photostat copies thereof to this Court for being kept on the record. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case. (Order on memo of appeal) List this appeal in the due course of hearing before appropriate Bench. Hearing of the appeal be expedited. (Om Prakash Shukla,J.) Order Date :- 27.1.2025 Saurabh

Heard learned counsel for the appellant and learned A.G.A. for the State. The appellant/applicant, Dipu Harijan, seeks bail in this appeal, which has been preferred against the judgment and order dated 18.01.2024 passed by learned Sessions Judge, Gonda in Sessions Trial No.23/2020, arising out of Case Crime No.241/2019, under Sections 323/34, 304/34, 504 I.P.C., Police Station Umari Begumganj, District Gonda, convicting and sentencing the appellant under Section 304 I.P.C. for ten years rigorous imprisonment alongwith fine of Rs.20,000/- and in default of payment of fine, the appellant was directed to undergo further simple imprisonment of six months. According to the prosecution case as mentioned in the F.I.R., it is alleged that on 28.11.2019 when the father of complainant was coming back from field after easing, he was assaulted by lathi, danda and fists due to old enmity. After hearing hue and cry, the nearby villagers gathered there and out of them, Mukesh Kumar and Durgam Kumar called Ambulance by dialing 108 and got admitted the deceased in the District Hospital, Gonda from where he was referred to Medical College, Lucknow but he was not admitted there due to non availability of bed rather he was referred to Ram Manohar Lohia Hospital, Lucknow. Learned counsel for the appellant submits that the appellant is innocent and has not committed any offence as alleged by the prosecution. He further submits that the F.I.R. is lodged after twelve days of incident without any plausible explanation and even the prosecution has failed to show any document from which the deceased was referred from the District Hospital, Gonda to the Medical College, Lucknow. He further submits that even the District Hospital, Gonda had also not intimated the police about the deceased and his injuries, thus, it creates doubt over the prosecution story. He further submits that there is no dying declaration of the deceased to support the prosecution case. Learned counsel for the appellant further submits that there are major contradictions in the evidences produced by the prosecution witnesses and the prosecution has also failed to brought any medical evidence on record to prove the fact that the deceased was ever medically treated anywhere after 01.12.2019. He further submits that even the inquest proceeding on the dead body of the deceased was conducted at the house of the deceased on 11.12.2019, as such, the prosecution story that the deceased died during treatment is also false. Learned counsel for the appellant further submits that two co- accused persons having similar role have been acquitted for the offence under Sections 304/34 and 504 I.P.C. while the present appellant has been convicted for the offence under Section 304 I.P.C. despite the fact that in the F.I.R. as well as in the statements recorded under Section 161 Cr.P.C., general role of causing injuries by lathi, danda and fists have been assigned to all the three persons. Learned counsel for the appellant further submits that the appellant was arrested on 12.12.2019 and during trial he was released on bail by co-ordinate Bench of this Court vide order dated 19.01.2022 passed in Criminal Misc. Bail Application No.15388 of 2021. He further submits that the appellant has never misused the liberty of bail. He further submits that there is no likelihood of this appeal to be heard at an early date or in near future. He further submits that the appellant does not have any criminal history. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of this appeal being allowed after final hearing takes place. Learned A.G.A. has opposed the prayer for bail. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early hearing and conclusion of appeal, this Court is of the view that the appellant may be enlarged on bail. Let the appellant- Dipu Harijan convicted and sentenced in Sessions Trial No.23/2020, arising out of Case Crime No.241/2019, under Sections 323/34, 304/34, 504 I.P.C., Police Station Umari Begumganj, District Gonda, be released on bail on his executing personal bond and two sureties each in the like amount to the satisfaction of the court concerned. It is made clear that fine, if any, is not stayed and the same be deposited by the appellant within one month after he is enlarged on bail. On acceptance of bail bond and personal bond, the trial court concerned shall transmit the photostat copies thereof to this Court for being kept on the record. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case. (Order on memo of appeal) List this appeal in the due course of hearing before appropriate Bench. Hearing of the appeal be expedited. (Om Prakash Shukla,J.) Order Date :- 27.1.2025 Saurabh