Allowed

Shivakant Alias Bade Babu v. State of U.P. Thru. Prin. Secy. Home U.P. Lko.

Allahabad HC6 Mar 2024CRLA/738/2024

Case brief

AI extract

What is this about?

The High Court suspended the sentence and granted bail to the appellant pending appeal in a murder case, noting hostile witnesses, inconsistencies in eye-witness testimony, and that the appellant had not misused bail during trial.

What did the court decide?

Sentence suspended; bail granted with conditions to deposit fine and furnish bonds within two weeks.

Shivakant Alias Bade Babu vs State of U.P. Thru. Prin… — Bail and Remand | Allahabad HC (2024)

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Court No. - 13

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Case :- CRIMINAL APPEAL No. - 738 of 2024

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Appellant :- Shivakant Alias Bade Babu Respondent :- State Of U.P. Thru. Prin. Secy. Home U.P. Lko. Counsel for Appellant :- Vivek Pandey,Jagriti Bardhan Rao Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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(On C.M. Application No. 1 of 2024)

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Heard learned counsel for the appellant, learned AGA for the State and perused the record.

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On 06.03.2024, this Court had passed the following order:-

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"1. Heard.

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2. Admit.

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3. Summon trial court record.

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4. List this case on 22.04.2024 within top ten cases.

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5. In the meantime, learned A.G.A. may objection to the bail application of the appellant.

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6. On the next date, bail application of the appellant shall be decided finally."

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In terms of the order dated 06.03.2024, quoted above, the trial court record is available and taking note of the same, this Court proceeded to dispose of the application of the appellant for suspension of sentence and enlarging the appellant on bail during the pendency of instant appeal.

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This application for bail has been moved in the instant criminal appeal arising out of Sessions Trial No. 400 of 2022 relating to Case Crime No. 28/2022 of 2015, under Sections323, 304, 504 I.P.C., P.S. Katra Bazar, District Gonda.

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Learned Counsel for the appellant while pressing the bail application submitted that the appellant is innocent and he has falsely been implicated in the instant case. He further submitted that as per the case setup in the FIR, the appellant on 19.01.2022 at 7.00 P.M. caused fatal injuries to her mother namely Raj Dulari (deceased) on her head with brick. The place of incident/situs of crime, as per the case of prosecution, is

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Village- Sisayi, P.S.- Katra Bazar, District- Gonda. After lodging FIR, the appellant was apprehended and sent to judicial custody and thereafter, he was enlarged on bail vide order dated 21.03.2023 passed by this Court.

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It is also stated that the concerned police after investigation filed the charge sheet before the trial court, whereupon, the appellant was put to trial and six witnesses of fact were produced by the prosecution before the trial court including the informant, who is father of the appellant. Before the trial court, four witnesses of fact became hostile.

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He also stated that two witnesses namely Rajbabu/PW-9 and Lalbabu/PW-10, who reside approximately two kilometers away from the situs of crime, were informed by the informant on phone about the alleged incident and when they reached, the deceased was taken away to primary health centre by ambulance, thus, these witnesses in fact were not the eye witnesses.

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He further submitted that autopsy surgeon was also duly examined and cross-examined before the trial court. In examination-in-chief, he stated that the injuries sustained by the deceased could be caused by brick and in cross-examination, he specifically indicated that the injuries sustained could be caused if someone falls on hard surface.

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Learned counsel for the appellant further submitted that the trial court in considering the statements of PW-9 and PW-10, as the statements of eye witnesses, committed material irregularity while passing the judgment of conviction in issue as also in ignoring the statements made by the autopsy surgeon in his cross-examination, the trial court committed error of law and fact both.

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He further submitted that at the stage of Section 313 Cr.PC. also, the trial court committed error of law because the questions were not put to accused after considering the entire evidence led by the prosecution and the provisions of Section 313 Cr.P.C. are not mere formality.

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He submitted that in the aforesaid facts, as stated in brief, the appellant is having every hope that he would succeed in the instant appeal.

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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

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dispute the fact that appellant-applicant was on bail during the course of trial.

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Considering the arguments advanced by the learned counsel for the appellant-applicant, 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 final hearing in this appeal in near future is bleak and also the statement of autopsy surgeon and facts related to the presence of PW-9 and PW-10 and that other witnesses of fact became hostile, 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.

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

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Let the applicant-appellant, namely, Shivakant Alias Bade Babu involved in aforesaid Case Crime Number be released on bail on depositing the amount of fine within a period of two 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:

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(i) The appellant-applicant shall cooperate in the disposal of appeal without seeking unnecessary adjournment.

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(ii) The appellant-applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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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.

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

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Order Date :- 22.4.2024 Arun/-

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Digitally signed by :- ARUN KUMAR GANGWAR High Court of Judicature at Allahabad, Lucknow Bench

Shivakant Alias Bade Babu v. State of U.P. Thru. Prin. Secy. Home U.P. Lko.

Case brief

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What did the court decide?

Shivakant Alias Bade Babu v. State of U.P. Thru. Prin. Secy. Home U.P. Lko.

Case brief

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What did the court decide?

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