Court No. - 51

Case :- CRIMINAL APPEAL No. - 1794 of 2013

Appellant :- Aravind @ Kale And 2 Others

Respondent :- State Of U.P.

Counsel for Appellant :- Vikrant Rana,Deepak Dubey,Manish

Tiwary,Nikhil Kumar,Rahul Kumar Tyagi

Counsel for Respondent :- Govt. Advocate,Vipin Kumar

Hon'ble Vipin Sinha,J.

Hon'ble Mahboob Ali,J.

Heard Sri Kamal Krishna, learned senior counsel assisted by Sri

Rahul Kumar Tyagi, learned counsel for the appellants, Sri Rakesh

Agrahari, learned A.G.A. appearing for the State and perused the

record.

In the present case bail is being sought in appeal against the order of

conviction.

We have perused the judgment and order dated 23.03.2013 passed

by the trial court convicting the appellant.

This is the first bail application filed on behalf of appellants, namely,

Aravind @ Kale, Kavinder and Vijay Pal; during trial the appellants

are on bail which liberty has not been abused or misused by them;

they were in jail since 23.03.2013; the criminal history of the

appellants have been explained in the supplementary affidavit dated

24.10.2016. The contention is that perusal of the judgement dated

23.03.2013 of the court below shows that it has been passed in a

causal manner without averting the postmortem report and the

injuries of the deceased; there is no reference in the judgement about

the discussions of the postmortem report and the injuries of the

deceased. Further contention is that first informant is not an eye

witness of the incident; much reliance has been placed on page 138

on the statement of the first informant which states that " Mujhe nhi

pta ki gurudwara road per kidwai gate se pahle hi 2-3 chhoti-chhoti

dairy ki dukane thi ya nahi jab meine firing ki awaz suni toh dudhiye

ke pass kareeb 10-12 aadmi dudh lene wale maujud the unke se 2-4

aadmi aaker mohala kidwai ne gharo mei ghus gai tatha dukano bhi

firero ki awaz per band ho gyi thi. Kyuki awaz jab meine suni tab se

dudh le chuki thi kyuki awaz per jaise hi mein ghatna sthal ki taraf

gyi toh mera ladka gira pada tha. Ladka goliyo ki chot lagte hi wah

baith gaya tha, phir let gaya tha phir kha ki kandhe per goli chali

tab let gyi nahi pta ki jo dukane band hui wah ki-2 chiz ki thi pahle

aate jate in dukano ki or gaur nhi kiya tha ki kitne baje khulti hai va

band hoti hai yha khana glat hai ki gatna wale dino mei dudh lene

na jati hu aur na koi ghatna dekhi ho." It is next contended that in

these facts and circumstances, the appeal becomes arguable and

there is likelihood of the appeal being allowed if it is heard on merit,

however, there is no likelihood of the appeal being heard in near

future.

Learned A.G.A. has strongly opposed the prayer for bail.

In view of the aforesaid facts and circumstances of the case, without

expressing any opinion on the merits of the case, at this stage, prima

facie, a case for bail has been made out. However, the said prima

facie view will not in any manner adversely affect the case of the

prosecution.

The prayer for bail is granted. The bail application is allowed.

Let the appellants, namely, Aravind @ Kale, Kavinder and Vijay

Pal convicted and sentenced in S.T. No. 1293 of 2007, arising out of

case crime no.351 of 2007, u/s 302 r/w 34 & 120-B IPC and 404

IPC, S.T. No.1288 of 2007 arising out of case crime no.388 of 2007,

u/s 25 Arms Act and S.T. No.1294 of 2007 arising out of case crime

no.358 of 2007, u/s 25 Arms Act, PS- Modi Nagar, District

Ghaziabad be released on bail on their furnishing personal bond with

two sureties each in the like amount to the satisfaction of the court

concerned.

On acceptance of bail bond and personal bond, the lower court shall

transmit photostat copies thereof to this Court for being kept on the

record.

Twenty five percent of the fine shall be deposited by each of the

appellants within a period of one month from the date of their

release and balance seventy five percent of fine shall remain stayed

during the pendency of this appeal. In case of default