High Court

Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard learned counsel for applicants- appellants, Sri Sarvesh Kumar Tiwari, learned counsel for the complainant, Shri S. P. Singh, learned A.G.A. for the State and perused the material available on record.

2. Since the aforesaid criminal appeals have been preferred against the impugned judgment and order dated 18.07.2024 passed by Additional Sessions Judge/F.T.C. New, District Gonda in Sessions Trial No.177 of 2012 arising out of Case Crime No.49 of 2011, under Section 302/34 I.P.C., Police Station Khargoopur, District Gonda, the first bail applications filed in these appeals have been heard together and are being decided by a common order.

3. These are the first bail applications preferred by the applicants/ appellants, Swami Dayal, Nakched alias Chedi Mishra and Babbu Dubey alias Dileep Kumar, who have been convicted and sentenced to undergo life imprisonment in Sessions Trial No.177 of 2012, arising out of Case Crime No.49 of 2011, under Sections 302/34 I.P.C. Police Station- Khargupoor, District Gonda.

4. Learned counsel for the applicants/ appellants has submitted that the applicants/ appellants are innocent, who have been falsely implicated in this case because of prior enmity between the parties and they have been convicted in this case against the weight of evidence.

5. His next submission is that the present case is based on circumstantial evidence. Except the alleged evidence of last seen, the chain of events is not so complete to indicate the guilt of the applicant/ appellant only.

6. His further submission is that except the recovery of a scarf (gamcha) on the pointing of the appellant/ applicant, Nakched alias Chedi Mishra, no other incriminating article/weapon of assault has been recovered from the possession of the other appellants/ applicants or on their pointing out.

7. His next submission is that according to law laid down by Hon'ble Supreme Court in Jabir and others vs. State of Uttarakhand reported in 2023 SCC OnLine SC 32, the evidence of last seen alone cannot be sufficient to hold the appellants/ applicants guilty in want of any other corroborative evidence.

8. His further submission is that the applicants/ appellants are languishing in jail since 18.07.2024, who have no previous criminal history. The applicants/ appellants were on bail during trial and they did not misuse the liberty of bail granted to them during trial.

9. Learned counsel for the appellants/ applicants has concluded his submission by submitting that, in case, the accused appellants/ applicants are enlarged on bail, they shall not misuse the liberty of bail and they shall also fully cooperate with the Court in getting the present criminal appeals concluded expeditiously.

10. Learned A.G.A. for the State and Shri Sarvesh Kumar Tiwari, learned counsel for the complainant have vehemently opposed the prayer for grant of bail to the accused-appellants/ applicants by submitting that learned trial Court has placed reliance upon the testimony of P.W.-3 in respect of the victim having been last seen in the company of accused persons and no explanation, whatsoever, could be offered by the accused persons regarding this fact. Therefore, they are not entitled to be enlarged on bail. However, they have been unable to dispute the other factual submissions advanced by learned counsel for the appellants/ applicants.

11. Having heard the learned counsel for the appellants/ applicants, learned A.G.A. for the State, learned counsel for the complainant and upon perusal of record, it transpires that initially a missing report came to be lodged by none other than P.W.-1, Rakesh Kumar Chaturvedi, who is father of the deceased regarding the deceased having gone missing. Subsequently, a first information report came to be lodged about his death. The dead body was found in a open place. The cause of death of the deceased is reported to be asphyxia due to ante-mortem suffocation. The deceased is stated to have been seen with the accused persons on 18.02.2011. However, the dead body of the deceased was recovered on

20.02.2011. The applicants/ appellants are languishing in jail since 18.07.2024, who have no previous criminal history. The applicants/ appellants were on bail during trial, who did not misuse the liberty of bail granted to them during trial. There is no likelihood of the appeals being heard in the near future as the paper book in this case is not ready.

12. Thus, having regard to overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties and without expressing any opinion on the merit of the case, a case for bail is made out. The applications for suspension of sentence are, thus, allowed.

13. Let the applicants/ appellants, Swami Dayal, Nakched alias Chedi Mishra and Babbu Dubey alias Dileep Kumar be released on bail during the pendency of this appeal on their furnishing personal bonds and two sureties each of the like amount to the satisfaction of the court concerned.

14. As soon as personal bond 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. It is made clear that during bail, the accused- appellants/ applicants shall not indulge themselves in any criminal activity. If they are found to have indulged in any criminal activity, the prosecution shall be at liberty to file an application for cancellation of bail.

16. The appellants/ applicants shall not commit any cognizable offence in respect of the victim or her parents as well as any other family members.

17. Half of the fine imposed on the appellants/ applicants by the learned trial Court shall remain stayed during pendency of appeal, but remaining half of the fine shall be deposited by the appellants/ applicants within a period of four weeks from the date of their release from jail concerned, failing which, the bail granted to the appellants/ applicants shall stand cancelled and they shall be arrested and sent to jail to serve out the sentence. (Order on Appeal)

18. Office is directed to prepare the typed paper book in these cases and provide a copy of the same to learned counsel for the parties as per rules of the Court.

19. List this case on 28.02.2025.

20. If any bail applications are pending in the connected appeals, the same can be heard in the interregnum as and when listed. (A.K. Srivastava-I, J.) (Sangeeta Chandra, J.) Order Date :- 3.1.2025 Mahesh

Hon'ble Mrs. Sangeeta Chandra,J. Hon'ble Ajai Kumar Srivastava-I,J.

1. Heard learned counsel for applicants- appellants, Sri Sarvesh Kumar Tiwari, learned counsel for the complainant, Shri S. P. Singh, learned A.G.A. for the State and perused the material available on record.

2. Since the aforesaid criminal appeals have been preferred against the impugned judgment and order dated 18.07.2024 passed by Additional Sessions Judge/F.T.C. New, District Gonda in Sessions Trial No.177 of 2012 arising out of Case Crime No.49 of 2011, under Section 302/34 I.P.C., Police Station Khargoopur, District Gonda, the first bail applications filed in these appeals have been heard together and are being decided by a common order.

3. These are the first bail applications preferred by the applicants/ appellants, Swami Dayal, Nakched alias Chedi Mishra and Babbu Dubey alias Dileep Kumar, who have been convicted and sentenced to undergo life imprisonment in Sessions Trial No.177 of 2012, arising out of Case Crime No.49 of 2011, under Sections 302/34 I.P.C. Police Station- Khargupoor, District Gonda.

4. Learned counsel for the applicants/ appellants has submitted that the applicants/ appellants are innocent, who have been falsely implicated in this case because of prior enmity between the parties and they have been convicted in this case against the weight of evidence.

5. His next submission is that the present case is based on circumstantial evidence. Except the alleged evidence of last seen, the chain of events is not so complete to indicate the guilt of the applicant/ appellant only.

6. His further submission is that except the recovery of a scarf (gamcha) on the pointing of the appellant/ applicant, Nakched alias Chedi Mishra, no other incriminating article/weapon of assault has been recovered from the possession of the other appellants/ applicants or on their pointing out.

7. His next submission is that according to law laid down by Hon'ble Supreme Court in Jabir and others vs. State of Uttarakhand reported in 2023 SCC OnLine SC 32, the evidence of last seen alone cannot be sufficient to hold the appellants/ applicants guilty in want of any other corroborative evidence.

8. His further submission is that the applicants/ appellants are languishing in jail since 18.07.2024, who have no previous criminal history. The applicants/ appellants were on bail during trial and they did not misuse the liberty of bail granted to them during trial.

9. Learned counsel for the appellants/ applicants has concluded his submission by submitting that, in case, the accused appellants/ applicants are enlarged on bail, they shall not misuse the liberty of bail and they shall also fully cooperate with the Court in getting the present criminal appeals concluded expeditiously.

10. Learned A.G.A. for the State and Shri Sarvesh Kumar Tiwari, learned counsel for the complainant have vehemently opposed the prayer for grant of bail to the accused-appellants/ applicants by submitting that learned trial Court has placed reliance upon the testimony of P.W.-3 in respect of the victim having been last seen in the company of accused persons and no explanation, whatsoever, could be offered by the accused persons regarding this fact. Therefore, they are not entitled to be enlarged on bail. However, they have been unable to dispute the other factual submissions advanced by learned counsel for the appellants/ applicants.

11. Having heard the learned counsel for the appellants/ applicants, learned A.G.A. for the State, learned counsel for the complainant and upon perusal of record, it transpires that initially a missing report came to be lodged by none other than P.W.-1, Rakesh Kumar Chaturvedi, who is father of the deceased regarding the deceased having gone missing. Subsequently, a first information report came to be lodged about his death. The dead body was found in a open place. The cause of death of the deceased is reported to be asphyxia due to ante-mortem suffocation. The deceased is stated to have been seen with the accused persons on 18.02.2011. However, the dead body of the deceased was recovered on

20.02.2011. The applicants/ appellants are languishing in jail since 18.07.2024, who have no previous criminal history. The applicants/ appellants were on bail during trial, who did not misuse the liberty of bail granted to them during trial. There is no likelihood of the appeals being heard in the near future as the paper book in this case is not ready.

12. Thus, having regard to overall facts and circumstances of this case and also keeping in view the arguments advanced on behalf of the parties and without expressing any opinion on the merit of the case, a case for bail is made out. The applications for suspension of sentence are, thus, allowed.

13. Let the applicants/ appellants, Swami Dayal, Nakched alias Chedi Mishra and Babbu Dubey alias Dileep Kumar be released on bail during the pendency of this appeal on their furnishing personal bonds and two sureties each of the like amount to the satisfaction of the court concerned.

14. As soon as personal bond 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. It is made clear that during bail, the accused- appellants/ applicants shall not indulge themselves in any criminal activity. If they are found to have indulged in any criminal activity, the prosecution shall be at liberty to file an application for cancellation of bail.

16. The appellants/ applicants shall not commit any cognizable offence in respect of the victim or her parents as well as any other family members.

17. Half of the fine imposed on the appellants/ applicants by the learned trial Court shall remain stayed during pendency of appeal, but remaining half of the fine shall be deposited by the appellants/ applicants within a period of four weeks from the date of their release from jail concerned, failing which, the bail granted to the appellants/ applicants shall stand cancelled and they shall be arrested and sent to jail to serve out the sentence. (Order on Appeal)

18. Office is directed to prepare the typed paper book in these cases and provide a copy of the same to learned counsel for the parties as per rules of the Court.

19. List this case on 28.02.2025.

20. If any bail applications are pending in the connected appeals, the same can be heard in the interregnum as and when listed. (A.K. Srivastava-I, J.) (Sangeeta Chandra, J.) Order Date :- 3.1.2025 Mahesh