A Division Bench of Justice B. Amit Sthalekar and Justice Shekhar Kumar Yadav, while hearing a Criminal Misc. Bail Application in Criminal Appeal No. 3319 of 2019, granted Bail to the Appellant on the ground that the Trial Court failed to consider that the injuries caused to the accused were not explained by the Prosecution.
Suraj Bhan, Jomdar, Mahesh, Shishu Pal @ Rishi Pal, Surendra and Satendra filed Criminal Appeal against the judgment and order dated 11.4.2019 passed by the Addl. Sessions Judge, Agra in Sessions Trial No. 1139 of 2009 (State Vs Jomdar and others), and Sessions Trial No. 123 of 2010 (State Vs Surendra), under Sections 147, 148, 302/149, 307/149 IPC, P.S. Kagarol, District Agra and Sessions Trial No. 03 of 2010 (State Vs Satendra), under Section 25/27 Arms Act and Sessions Trial No. 1140 of 2009 (State Vs Shishu Pal @ Rishi Pal), under Sections 25/27 Arms Act, whereby the appellants Suraj Bhan, Jomdar, Mahesh, Shishu Pal @ Rishi Pal, Surendra and Satendra have been convicted under Sections 148, 302/149, 307/149 IPC and sentenced to undergo rigorous imprisonment for two years each and a fine of Rs. 1,000/- under Section 148 IPC with default stipulation, and they have been sentenced to undergo life imprisonment under Section 302/149 IPC along with fine of Rs. 30,000/- each with default stipulation and further all the appellants have also been sentenced under Section 307/149 IPC for seven years rigorous imprisonment along with fine of Rs. 5000/- with default stipulation. Appellants Shishupal @ Rishi Pal and Satendra Singh have been convicted under Section 25/27 Arms Act and sentenced to undergo two years rigorous imprisonment with fine of Rs. 1000/- with default stipulation. The appellants prayed for their release on bail during the pendency of this criminal appeal before the Court.
Contention of Appellant:
- The Trial Court has not appreciated the evidence properly with regard to the cross case so as to determine as to which party was the aggressor and has convicted the appellants without proper application of mind.
- The statements of prosecution witnesses are not reliable and trustworthy, who were also an accused in cross case
- The statements of prosecution witnesses are not reliable and trustworthy, who were also an accused in the cross case.
Findings of Court
- The evidence on record prima facie reveals that apart from deceased, the accused side also sustained injuries, however, it is the case of the applicants that such injuries are not explained by the prosecution.
- It is well settled law that if accused is proved to have sustained injuries in course of same incident and there is no explanation of such injuries by the prosecution, it is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence.
- It is, therefore, incumbent upon the prosecution to explain the injuries on the person of the accused as well and prima facie this lacuna or infirmity appearing in the prosecution case, entitles the applicants to be enlarged on bail. However, there may be cases where the non-explanation of the injuries by the prosecution may not affect the prosecution case but that would apply to cases where the injuries sustained by the accused are minor and superficial. In the instant case, prima facie what we find from the record is that four persons from the accused side namely Shishupal, Suraj Bhan, Mahesh and Surendra have sustained grievous injuries of which there is no explanation forthcoming from the side of the prosecution.
Ultimately the Court allowed the Bail Application and directed the Appellants to be released on bail pending appeal.