Allahabad High Court

1. Heard learned counsel for the appellants, Sri Samarth Agarwal holding brief of Sri Ganesh Nath Mishra learned counsel for the informant, learned A.G.A. for the State on bail pending in present criminal appeal.

2. The instant criminal appeal under Section 374 (2) Cr.P.C. against the judgment and order dated 07.06.2024 passed by learned Additional Sessions Judge, Gonda in Session Trial No.466/2020, State V Bhawani Shanker & another arising out of Case Crime No.954/2019, Under Sections-323/34, 304/34, 504 Police Station-Kotwali Nagar, District- Gonda convicting and sentencing the appellants αν Under Section-304 part-1 read with Section 34 I.P.C. for 10 Years rigorous imprisonment &. fine of Rs. 10,000-00 each & in default of of fine payment amount to further undergo 6 months simple imprisonment, Under Section 323 read with Section 34 I.P.C. for 6 months simple imprisonment, Under Section- 504 I.P.C. for 1 year simple imprisonment & fine of Rs. 5000-00 each & in default of payment of fine amount to further undergo 3 months simple imprisonment, all the sentences have been made to run concurrently.

3. Learned counsel for the appellants submits that in the present case FIR 2 CRLA No. 2015 of 2024 was lodged by the informant Pooja wife of Krishna Dev with averments that on 18.12.2019 at about 11.00 a.m. accused persons, namely, Bhawani Shanker, Raja and Rajesh Kumar abused and assaulted her by kicks, fists and slaps. On hearing the noise, her father-in-law/ Shiv Prasad Misra and mother-in-law/ Pushpa Mishra ran towards her whereupon the accused persons also abused them and assaulted them by fists kicks and Lathi. A land dispute is pending between the parties in the court.

4. He next submitted that in the injury report of injured Shiv Prasad Mishra dated 19.12.2019; three injuries were found on his person i.e. one, abrasion 1c.m. x 2 c.m. on lower lips, second, contusion 2cmx1cm below right eye just below and third, injured was complaining pain in lower abdomen. The injury no.3 was kept under observation. The other injuries were simple and were caused by some hard and blunt object. The case was registered as NCR No.352 of 2019 on 19.12.2019 on the next day of incident. However, injured Shiv Prasad Mishra died on

19.12.2019 in Medical College, Lucknow during treatment. After death of injured, the case was altered under Section 305 IPC .

5. In the postmortem report of the deceased dated 21.12.2019, three anti- mortem injuries were detected. One stitched wound 27 c.m. alongwith 14 stitches on front of abdomen at mid line, second colostomy wound on right side of abdomen 4 c.m. lateral to injury no.1 and third, surgical wound on left side of abdomen 6 c.m. lateral to injury no.1. On opening echymosis (clotted blood) was found present and in abdomen 200 ml pus was found and multiple pus pockets were seen in the internal organs of the abdomen of the deceased.

6. He next submitted that the informant Pooja was examined as P.W.-1, her mother-in-law-Pushpa Mishra was examined as P.W.-2 and Gayatri Pandey sister-in-law ( Nand of the informant ) was examined as P.W.-3. No medical examination of injured Pushpa Mishra was conducted. In the injury report of Pooja Mishra, one abrasion was found on right hand just above the wrist and one traumatic swelling was found on the tip of right thumb. According to FIR version, no altercation of the appellants with the deceased took place and it is stated by the witness that when he intervened, he was assaulted by the appellants by Lathi and spade whereas 3 CRLA No. 2015 of 2024 the FIR version, it is nowhere stated that any of the accused was armed with spade, therefore, the version that the accused Bhawani Shanker was armed with spade and assaulted the deceased, is after thought but no reliance can be placed thereon.

7. He next submitted that in the postmortem report of the deceased the cause of death is shown septicemia as a result anti-mortem injuries. It is consistent version of the appellants that deceased had undergone Hernia operation prior to this incident and septicemia had developed after operation of Harnia which resulted into his death . The injuries of the deceased as shown in his injury report, no medical evidence suggests that these can be fatal and second injury was superficial in nature and third injury the complain of pain in lower part of the abdomen may have been occurred due to earlier operation .

8. He lastly submitted that even if the prosecution version is taken at its face value, the case travel beyond Section 304(2) IPC. The appellants are also in jail custody since 07.06.2024 after conviction and they have also been held in jail custody during trial prior to release on bail. Thus, they have undergone more than one and half years imprisonment. The appeal is not likely to be heard in near future due to huge backlog.

9. Per contra, learned A.G.A. as well as Sri Samarth Agrawal, learned counsel for the informant have opposed the prayer for grant of bail and submitted that in the statement of eye witnesses, it is stated that the deceased was assaulted by spade, Lathi and kicks and fists by the accused persons which resulted in his death during treatment. They next submitted that the prosecution has not admitted the defence version that the deceased had undergone operation of Hernia. Considering submissions of learned counsel for the parties and the totality of facts and circumstances of the case, nature of offenses, nature of allegations, role assigned to the appellant in the offense, nature of evidence led against them and without expressing any view on the merits of the case, I find it to be a fit case for bail.

10. Let the appellant, namely, Bhawani Shanker and Rajesh Mishra, be released on bail in the aforesaid Sessions Trial number during the 4 CRLA No. 2015 of 2024 pendency of appeal on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

11. On acceptance of bail bonds and personal bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on record.

12. The appellants have undertaken not to indulge into any anti-social activity particularly against the informant and in the event of any such incident it shall be open to the complainant to make an application for cancellation of bail.

13. As regards fine, half of the amount of fine will be deposited by the appellants within fifteen days of their release from jail pursuant to present bail order, the remaining half of the fine shall be stayed during pendency the appeal. Order of Appeal List in due course for hearing. December 10, 2025 dk/ (Ram Manohar Narayan Mishra,J.)

1. Heard learned counsel for the appellants, Sri Samarth Agarwal holding brief of Sri Ganesh Nath Mishra learned counsel for the informant, learned A.G.A. for the State on bail pending in present criminal appeal.

2. The instant criminal appeal under Section 374 (2) Cr.P.C. against the judgment and order dated 07.06.2024 passed by learned Additional Sessions Judge, Gonda in Session Trial No.466/2020, State V Bhawani Shanker & another arising out of Case Crime No.954/2019, Under Sections-323/34, 304/34, 504 Police Station-Kotwali Nagar, District- Gonda convicting and sentencing the appellants αν Under Section-304 part-1 read with Section 34 I.P.C. for 10 Years rigorous imprisonment &. fine of Rs. 10,000-00 each & in default of of fine payment amount to further undergo 6 months simple imprisonment, Under Section 323 read with Section 34 I.P.C. for 6 months simple imprisonment, Under Section- 504 I.P.C. for 1 year simple imprisonment & fine of Rs. 5000-00 each & in default of payment of fine amount to further undergo 3 months simple imprisonment, all the sentences have been made to run concurrently.

3. Learned counsel for the appellants submits that in the present case FIR 2 CRLA No. 2015 of 2024 was lodged by the informant Pooja wife of Krishna Dev with averments that on 18.12.2019 at about 11.00 a.m. accused persons, namely, Bhawani Shanker, Raja and Rajesh Kumar abused and assaulted her by kicks, fists and slaps. On hearing the noise, her father-in-law/ Shiv Prasad Misra and mother-in-law/ Pushpa Mishra ran towards her whereupon the accused persons also abused them and assaulted them by fists kicks and Lathi. A land dispute is pending between the parties in the court.

4. He next submitted that in the injury report of injured Shiv Prasad Mishra dated 19.12.2019; three injuries were found on his person i.e. one, abrasion 1c.m. x 2 c.m. on lower lips, second, contusion 2cmx1cm below right eye just below and third, injured was complaining pain in lower abdomen. The injury no.3 was kept under observation. The other injuries were simple and were caused by some hard and blunt object. The case was registered as NCR No.352 of 2019 on 19.12.2019 on the next day of incident. However, injured Shiv Prasad Mishra died on

19.12.2019 in Medical College, Lucknow during treatment. After death of injured, the case was altered under Section 305 IPC .

5. In the postmortem report of the deceased dated 21.12.2019, three anti- mortem injuries were detected. One stitched wound 27 c.m. alongwith 14 stitches on front of abdomen at mid line, second colostomy wound on right side of abdomen 4 c.m. lateral to injury no.1 and third, surgical wound on left side of abdomen 6 c.m. lateral to injury no.1. On opening echymosis (clotted blood) was found present and in abdomen 200 ml pus was found and multiple pus pockets were seen in the internal organs of the abdomen of the deceased.

6. He next submitted that the informant Pooja was examined as P.W.-1, her mother-in-law-Pushpa Mishra was examined as P.W.-2 and Gayatri Pandey sister-in-law ( Nand of the informant ) was examined as P.W.-3. No medical examination of injured Pushpa Mishra was conducted. In the injury report of Pooja Mishra, one abrasion was found on right hand just above the wrist and one traumatic swelling was found on the tip of right thumb. According to FIR version, no altercation of the appellants with the deceased took place and it is stated by the witness that when he intervened, he was assaulted by the appellants by Lathi and spade whereas 3 CRLA No. 2015 of 2024 the FIR version, it is nowhere stated that any of the accused was armed with spade, therefore, the version that the accused Bhawani Shanker was armed with spade and assaulted the deceased, is after thought but no reliance can be placed thereon.

7. He next submitted that in the postmortem report of the deceased the cause of death is shown septicemia as a result anti-mortem injuries. It is consistent version of the appellants that deceased had undergone Hernia operation prior to this incident and septicemia had developed after operation of Harnia which resulted into his death . The injuries of the deceased as shown in his injury report, no medical evidence suggests that these can be fatal and second injury was superficial in nature and third injury the complain of pain in lower part of the abdomen may have been occurred due to earlier operation .

8. He lastly submitted that even if the prosecution version is taken at its face value, the case travel beyond Section 304(2) IPC. The appellants are also in jail custody since 07.06.2024 after conviction and they have also been held in jail custody during trial prior to release on bail. Thus, they have undergone more than one and half years imprisonment. The appeal is not likely to be heard in near future due to huge backlog.

9. Per contra, learned A.G.A. as well as Sri Samarth Agrawal, learned counsel for the informant have opposed the prayer for grant of bail and submitted that in the statement of eye witnesses, it is stated that the deceased was assaulted by spade, Lathi and kicks and fists by the accused persons which resulted in his death during treatment. They next submitted that the prosecution has not admitted the defence version that the deceased had undergone operation of Hernia. Considering submissions of learned counsel for the parties and the totality of facts and circumstances of the case, nature of offenses, nature of allegations, role assigned to the appellant in the offense, nature of evidence led against them and without expressing any view on the merits of the case, I find it to be a fit case for bail.

10. Let the appellant, namely, Bhawani Shanker and Rajesh Mishra, be released on bail in the aforesaid Sessions Trial number during the 4 CRLA No. 2015 of 2024 pendency of appeal on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

11. On acceptance of bail bonds and personal bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on record.

12. The appellants have undertaken not to indulge into any anti-social activity particularly against the informant and in the event of any such incident it shall be open to the complainant to make an application for cancellation of bail.

13. As regards fine, half of the amount of fine will be deposited by the appellants within fifteen days of their release from jail pursuant to present bail order, the remaining half of the fine shall be stayed during pendency the appeal. Order of Appeal List in due course for hearing. December 10, 2025 dk/ (Ram Manohar Narayan Mishra,J.)