# Amit Bajpai v. State of U.P. & Ors

- **Citation:** (2024) 7 ILRA 1105
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-07-24
- **Case number:** Criminal Appeal No. 1626 of 2024
- **Bench:** Shamim Ahmed
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amit-bajpai-v-state-of-u-p-ors-52186
- **Pages:** 10

## Headnote

(A) Criminal Law - appeal - Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act - Sections 14-A (2) &
3(2)(V) - Indian Penal Code, 1860 -
Sections 302, 324, 504, 506 & 307 - Bail
Application - Grant of Bail - Appellant
attacked
and
assaulted
by
multiple
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
individuals, including a police officer - No
mens rea established - Case falls under
Section 304 IPC, not Section 302 IPC -
Application of Article 21 of Constitution
and
relevant
Supreme
Court
precedents.(Para - 33)

(B) Criminal Law - Indian Penal Code,
1860 - Section 97 - Right of Private
Defense - a right of private defence
extends not only to the defence of one's
own body against any offence affecting
the human body but also to defend the
body of any other person - Self-defense is
justified when faced with imminent harm.
(Para -22)

Appellant suddenly attacked and assaulted by 3
persons, including police officer - suffered 6
grievous injuries - used small knife from
keychain in self-defense - Allegations of misuse
of power by police officer - Statements of
eyewitnesses unreliable and tutored -
trial
Court rejected appellant's bail application. (Para
-33)

HELD: - Self-defense established, no intent to
murder. Prosecution failed to prove criminal
intent (mens rea) for murder (Section 302 IPC).
Case reclassified as culpable homicide (Section
304
IPC).
Eyewitness
accounts
deemed
unreliable and tutored. The trial court's bail
rejection was erroneous. Appellant's detention
unnecessary due to trial delays and lack of
evidence tampering. Set aside the trial court's
order. (Para - 33)

Criminal Appeal allowed. (E-7)

List of Cases cited:

## Text

7 All. Amit Bajpai Vs. State of U.P. & Ors.
1105
manner in which the appellant was
searched, is doubtful, the prosecution has
also not prosecuted the case seriously,
knowing that severe punishment has been
provided in N.D.P.S. Act. It produced only
four witnesses i.e S.I. Arvind Kumar as
P.W.-1, Constable Hasan Afroz as P.W.-2,
Sughar Singh as P.W.-3 and K.K. Yadav,
S.I. as P.W.-4 and withheld other witness
without any justification.

21. In the light of above
discussion, it is clear that the prosecution
has
failed
to
prove
the
mandatory
compliance of Section 50 N.D.P.S. Act. In
absence of compliance of mandatory
provision of Section 50 N.D.P.S Act, the
prosecution case, based on testimony of
police personnel i.e. S.I. Arvind Kumar as
P.W.-1, Constable Hasan Afroz as P.W.-2,
Sughar Singh as P.W.-3 and K.K. Yadav,
S.I. as P.W.-4, whose statements are not
wholly reliable, cannot be held as proved
beyond reasonable doubt in view of the
other illegalities and material irregularity
committed by the witnesses as discussed
above.

22. Thus this Court is of the view
that prosecution has miserably failed to prove
its case beyond reasonable doubt against the
appellant. The trial Court has not properly
discussed the evidence produced by the
prosecution and has passed the impugned
judgment and order against the settled
principle of law including provisions of
N.D.P.S. Act. This Court, therefore, unable to
uphold the conviction and sentence of the
appellant. The appellant is entitled to be
acquitted. The impugned judgment and order
is liable to be set aside and accordingly,
appeal is liable to be allowed.

23. In view of the above,
impugned judgment and order dated
13.07.2006 passed by learned Additional
Sessions Judge, F.T.C.-VII, Lucknow in
Sessions Trial No.176 of 2002 arising out
of Case Crime No.176 of 2002, under
Sections 8/18/21 of N.D.P.S. Act, Police
Station Alambagh, District Lucknow, is set
aside and reversed and accused/appellant,
namely, Mohd.Yusuf is acquitted of the
charges levelled against him. Consequently,
the appeal is allowed. His personal bond
and surety bonds are canceled and sureties
are discharged.

24. Let a copy of this judgment
alongwith the trial court record be sent
immediately to the Trial Court concerned
for necessary compliance.

25. No order as to the costs.
----------
(2024) 7 ILRA 1105
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 24.07.2024

BEFORE

THE HON'BLE SHAMIM AHMED, J.

Criminal Appeal No. 1626 of 2024

Amit Bajpai ...Appellant
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellant:
Nadeem
Murtaza,
Harsh
Vardhan
Kediya,
Vaibhav Pandey, Wali Nawaz Khan

Counsel for the Respondents:
G.A., Arvind Kumar Verma

(A) Criminal Law - appeal - Scheduled
Castes & Scheduled Tribes (Prevention of
Atrocities) Act - Sections 14-A (2) &
3(2)(V) - Indian Penal Code, 1860 -
Sections 302, 324, 504, 506 & 307 - Bail
Application - Grant of Bail - Appellant
attacked
and
assaulted
by
multiple
1106 INDIAN LAW REPORTS ALLAHABAD SERIES
individuals, including a police officer - No
mens rea established - Case falls under
Section 304 IPC, not Section 302 IPC -
Application of Article 21 of Constitution
and
relevant
Supreme
Court
precedents.(Para - 33)

(B) Criminal Law - Indian Penal Code,
1860 - Section 97 - Right of Private
Defense - a right of private defence
extends not only to the defence of one's
own body against any offence affecting
the human body but also to defend the
body of any other person - Self-defense is
justified when faced with imminent harm.
(Para -22)

Appellant suddenly attacked and assaulted by 3
persons, including police officer - suffered 6
grievous injuries - used small knife from
keychain in self-defense - Allegations of misuse
of power by police officer - Statements of
eyewitnesses unreliable and tutored -
trial
Court rejected appellant's bail application. (Para
-33)

HELD: - Self-defense established, no intent to
murder. Prosecution failed to prove criminal
intent (mens rea) for murder (Section 302 IPC).
Case reclassified as culpable homicide (Section
304
IPC).
Eyewitness
accounts
deemed
unreliable and tutored. The trial court's bail
rejection was erroneous. Appellant's detention
unnecessary due to trial delays and lack of
evidence tampering. Set aside the trial court's
order. (Para - 33)

Criminal Appeal allowed. (E-7)

List of Cases cited:

1. Sukumaran Vs St. Represented by Inspector
of Police, (2019) 15 SCC 117

2. Dataram Singh Vs St. of U.P. & anr., (2018) 3
SCC 22

(Delivered by Hon'ble Shamim Ahmed, J.)

1. Heard Sri Nadeem Murtaza
alongwith Sri Wali Nawaz Khan, learned
counsel for the appellant, Sri Ashok Kumar
Singh, learned A.G.A.-I for the State
Opposite Party No.1 and Sri Arvind Kumar
Verma, learned counsel for the opposite party
no.2 and 4 as well as perused the entire
record.

2. This Criminal Appeal under
Section 14-A (2) of Scheduled Castes &
Scheduled Tribes (Prevention of Atrocities)
Act has been preferred against the impugned
order dated 18.04.2024 passed by learned
Special Judge, S.C./S.T. Act, Lucknow in
Bail Application No.2573 of 2024, Case
Crime No.173 of 2024, under Sections 302,
324, 504, 506, 307 I.P.C. and Section 3(2)(V)
of S.C./S.T. Act, Police Station P.G.I., District
Lucknow East (Commissionerate Lucknow),
whereby the bail application of the appellant
has been rejected.

3. Learned counsel for the appellant
submits that as per the prosecution case the
allegations so levelled by the informant are
that allegedly on 25.03.2024 her husband
(Baldev Singh) returned to his flat from
Sector 16 after celebrating Holi with his
family. Her husband parked his car and
wished the appellant/accused (Amit Bajpai)
'Happy Holi'. In reply the appellant, who was
in a drunken state, started abusing. When her
husband objected to the abusive language, the
appellant attacked him with a knife. It is
further alleged that when the brother of the
informant, namely Yash (the deceased), tried
to save Baldev Singh, the appellant abused
him with casteist slurs, threatened him with
dire consequences and stabbed him multiple
times on his chest and stomach. It has been
further alleged that the appellant also abused
another resident of the same apartment,
namely Arvind Kumar, when he tried to save
Baldev and Yash.

4. Learned counsel for the
appellant submits that it is significant to
7 All. Amit Bajpai Vs. State of U.P. & Ors.
1107
mention that approximately two hours prior
to the registration of the instant FIR i.e.
Case Crime No.173 of 2024, under
Sections 302, 324, 504, 506, 307 I.P.C. and
Section 3(2)(V) of S.C./S.T. Act, Police
Station P.G.I., District Lucknow East
(Commissionerate Lucknow), the appellant
had lodged an FIR No. 172/2024 on
25.03.2024, under Sections 308, 323, 325,
504, 506 IPC, at Police Station P.G.I.,
District Lucknow, against the aforesaid
persons, namely Arvind Kumar, Yash, and
Baldev Singh Chauhan, bringing the true
story to light, wherein he was attacked by
the said persons.

5. He further submits that the correct
facts, which have been narrated by the
appellant in FIR No. 172/2024 on 25.03.2024,
under Sections 308, 323, 325, 504, 506 IPC, at
Police Station P.G.I., District Lucknow are that
at around 4:00 PM, when the appellant was
returning to his apartment after parking his
vehicle, Baldev Singh Chauhan and his
brother-in-law Yash along with Arvind,
attacked the appellant with rod and balli. The
appellant suffered grave head injuries. All the
three persons threatened to kill the appellant
and they again attacked when the appellant ran
towards the lift to save his life. The appellant
was saved by the people of the society and he
was admitted in Apex Trauma Centre where
the medical examination of the appellant
revealed that he has sustained fracture in his
head.

6. He further submits that the
medical examination of Yash Chauhan was
conducted on 25.03.2024 at Apex Trauma
Centre wherein it has been stated that an
unknown drunk person attacked with a
sharp object at around 4:30 PM. The copy
of the MLC dated 25.03.2024 is annexed
herewith as Annexure no. 3 to the affidavit
filed alongwith this appeal.
7. He further submits that during
the course of investigation, the statement of
the informant was recorded under Section
161 Cr.P.C. on 26.03.2024, wherein, in
addition to reiterating the version of the
FIR, she stated that her brother is in very
critical situation and he is being treated on
ventilator.

8. He further submits that during
the course of investigation, the statement of
the appellant was also recorded under
section 161 Cr.P.C on 26.03.2024, wherein,
he has stated that on 25.03.2024, on the day
of Holi, he returned from temple and while
parking
his
vehicle
at
Shiv
Green
Apartment he was attacked by Baldev
Singh Chauhan, his brother-in-law Yash
and Arvind with rod and balli due to which
he suffered grave head injuries. It is further
stated that all the three persons threatened
to kill him and they again attacked when
the appellant ran towards the lift to save his
life. The appellant was saved by the people
of the society.

9. He further submits that the
statement of Baldev Singh Chauhan was
recorded under Section 161 Cr.P.C on
26.03.2024,
wherein,
in
addition
to
reiterating the version of the FIR and
supporting the statement of his wife i.e.
opposite party no.2, he has stated that the
medical treatment of his brother-in- law is
going on at Trauma Centre and he has been
discharged by the doctor.

10. He further submits that the
appellant was arrested at 12:35 PM on
26.03.2024 and his wife, the deponent, was
duly informed. He further submits that it is
also significant to bring on record that the
keychain with the knife allegedly used by
the appellant was recovered from the right
pocket and the broken tip of the knife was
1108 INDIAN LAW REPORTS ALLAHABAD SERIES
recovered from the other pocket of the
appellant. He further submits that Baldev
Singh and Arvind Kumar were also
searched and the rod and balli used by them
to attack the appellant were collected and
seized.

11. He further submits that the
injury report of Baldev Singh Chauhan
(husband of the opposite party no. 2) was
prepared on 26.03.2024 at 3:25 PM in
relation and perusal of the same shows that
he had sustained two stitched wounds. He
further submits that the injury report of the
appellant was also prepared on 26.03.2024
at 3:45 PM which shows that the appellant
had sustained serious injuries, including a
stitched wound.

12. He further submits that the
statement of alleged eye-witness Yaar
Mohammad was recorded under section
161 Cr.P.C on 27.03.2024, wherein, he has
stated that he is the guard at Shiv Green
Apartment, Sector 14 and on 25.03.2024 at
10:23 PM when he was doing night- shift,
the appellant was highly drunk and got
involved in a fight with Baldev Singh
Chauhan, Yash Chauhan and Arvind Kumar
in relation with parking of vehicle. Both the
parties got injured and were admitted at
Trauma Centre. He further submits that it is
pertinent to note that it has been stated by
Yaar Mohammad that Arvind Kumar works
in police department and previously served
as inspector-in-charge.

13. He further submits that
during the course of investigation, the
statement
of
alleged
eye-witness
Ratnakar Upadhyay was also recorded
under section 161 Cr.P.C on 27.03.2024,
wherein, he has stated that he resides in
Shiv Green Apartment sector 14 and on
25.03.2024 at around 10:23 PM he was
going out for some work on his vehicle
when he saw the appellant, who was in a
highly drunken state, involved in a fight
with
Baldev
Singh
Chauhan,
Yash
Chauhan and Arvind Kumar in relation
with parking of vehicle. He further stated
that when he tried to settle the matter, the
appellant attacked on his car with knife,
however, the mirrors were closed and he
was saved. He further added that both the
parties got injured in the fight and he
later left in his vehicle.

14. He further submits that one
of the injured persons, namely Yash
Chauhan, passed away on 03.04.2024 at
Trauma Centre P.G.I., where after the
post mortem examination was conducted
on the same date and a perusal of the
same shows that the cause of death has
been shown to be septicemia due to ante
mortem injuries.

15. He further submits that it
would be relevant to note that the
deceased passed away after 8 days of the
alleged incident and thereafter, Section
302 IPC was also added to the array of
offences alleged in the instant case.

16. He further submits that the
statement of alleged eye-witness Gaurav
Sethi was recorded under section 161
Cr.P.C on 03.04.2024, wherein, he has
stated Arvind Kumar and Baldev are his
friends and on 25.03.2024 at 4:00 PM, on
account of Holi he along with Sarvan
Kumar Mishra went to Shiv Apartment
Vindravan Colony where he saw the
appellant in drunken state involved in an
abusive fight with respect to vehicle
parking. He further stated that the appellant
attacked Yash Chauhan with a knife and
when Baldev, Amit and others tried to save
Yash, the appellant attacked them as well.
7 All. Amit Bajpai Vs. State of U.P. & Ors.
1109
Additionally, he stated that all the three
persons in self- defence had beaten the
appellant with rod, lathi and danda.

17. He further submits that the
statement of alleged eye-witness Sarvan
Kumar Mishra was recorded under section
161 Cr.P.C on 03.04.2024, wherein, he has
reiterated and supported the aforesaid
statement of Gaurav Sethi.

18. He further submits that Arvind
Kumar,
being
employed
in
police
department and being an ex-inspector-incharge of the area, is abusing his position to
incriminate the innocent appellant by
bringing false eye- witnesses and showing
false recovery of murder weapon on record
as the recovery of the alleged knife used in
the incident, being planted, and the
confession being given before the police
officer have no value in the eyes of law.

19. He further submits that a bare
perusal of the aforesaid statements would
reveal that absolutely vague and absurd
allegations have been made regarding the
incident which raises serious doubts upon
the credibility of the same as well as casts a
shadow upon the prosecution case. As such,
the said statements fail to inspire any
confidence.

20. He further submits that
significantly the opposite party no.3 Arvind
Kumar is a police officer posted as SubInspector at Police Line, Lucknow and he
has
been
suspended
by
the
Police
Commissionerate, Lucknow for his key
involvement in the incident. A Press Note
dated 26.03.2023 was also released by the
Police
Commissionerate,
Lucknow
disclosing the suspension of Arvind Kumar,
which also shows that the appellant was
attacked first by the three persons.
21. He further submits that it is
also
clear
from
the
CCTV
footage
(snapshots of which are annexed as
Annexure No. 16 to the affidavit filed in
support of this appeal) that three persons
are attacking and assaulting the appellant
with rods and balli. He further submits that
it can also be seen that the appellant is
trying to save himself in the best possible
way and the scrutiny of the CCTV footage
by the investigating officer himself shows
that the appellant was assaulted first.

22. He further submits that the
appellant in order to save himself from the
sudden attack, used whatever he could find
on him at the time, i.e. the small knife in
his keychain to protect himself, however,
there was no intention or motive on the part
of the appellant to murder any person and
he acted only to save his own life. In
support of his argument, learned counsel
for the appellant has relied upon a
judgment rendered by Hon'ble the Supreme
Court of India in the case of Sukumaran
Vs. State Represented by Inspector of
Police, (2019) 15 SCC 117, wherein in
para 31 of the judgment, Hon'ble the Apex
Court was pleased to observe as under:-

"31.
Section
97
IPC
provides that a right of private
defence extends not only to the
defence of one's own body against
any offence affecting the human
body but also to defend the body of
any other person. The right also
embraces
the
protection
of
property, whether one's own or
another person's, against certain
specified offences, namely, theft,
robbery, mischief and criminal
trespass. The limitations on this
right and its scope are set out in the
sections which follow. For one
1110 INDIAN LAW REPORTS ALLAHABAD SERIES
thing, the right does not arise if
there is time to have recourse to the
protection of the public authorities,
and for another, it does not extend
to the infliction of more harm than
is necessary for the purpose of
defence. Another limitation is that
when death is caused, the person
exercising the right must be under
reasonable apprehension of death,
or grievous hurt, to himself or to
those whom he is protecting; and in
the case of property, the danger to
it must be of the kinds specified in
Section 103. The scope of the right
is further explained in Sections 102
and 105 IPC. (See observations of
Vivian Bose, J. in Amjad Khan v.
State.)"

23. He further submits that the
appellant in the instant case was suddenly
attacked with rods and balli by three
persons
which
created
a
reasonable
apprehension of death and grievous hurt in
his mind. Thus, his actions in defending
himself were not disproportionate to the
attack he was facing. He further submits
that no prudent person would believe that
the appellant, being alone in the fight,
could stand against three persons and could
have assaulted three persons, singlehandedly, who were armed with deadly
weapons.

24. He further submits that it is
notable that the appellant suffered six
grievous injuries during the assault by the
opposite parties. The medical examination
of the appellant reveals multiple abrasion,
conture swelling and stitched wound injury
on the right side of the head.

25. He further submits that even
the statements of so-called eye-witnesses,
namely Yaar Mohammad and Ratnakar
Upadhyay, place the time of the alleged
incident at 10:23 PM i.e. a difference of
about 6 hours from 04:30 PM, which is the
time of the alleged incident as per the
allegations levelled in the FIR by the
informant herself and which is also what
the prosecution story has been throughout.
The said difference, coupled with the fact
that the statements of Ratnakar Upadhyay
and Yaar Mohammad are identical to one
another and clearly tutored, render the same
wholly unreliable.

26. He further submits that
significantly around 14 residents of the
society where the alleged incident took
place, gave a written complaint to the
Police
Commissioner,
Lucknow,
highlighting the frequent and continued
misbehaviour of Baldev Singh Chauhan
and abuse of the position of police officer
by Arvind Kumar. He further submits that it
has also been highlighted in the complaint
that Baldev Singh Chauhan and Arvind
Kumar brutally assaulted the appellant and
also tried to take his life which also lends
support to the fact that the appellant was
not the instigator of the alleged incident.

27. He further submits that it is
evident that the appellant had no intention
to commit the alleged offence as he merely
acted in private defence with the help of
what he had on his person to defend
himself at the time as he acted in the spur
of the moment which shows that he never
planned to commit the alleged murder or
had any intention to take life of anyone.
Thus, there is no evidence that would show
mens rea on the part of the appellant, which
is a necessary ingredient for an offence
punishable under Section 302 IPC. As such,
even if the prosecution version is accepted
uncontroverted, the present case cannot
7 All. Amit Bajpai Vs. State of U.P. & Ors.
1111
travel beyond the ambit of Section 304
IPC.

28. He further submits that other
than the instant case, the appellant has a
criminal history of one case i.e. Case Crime
No. 18 of 2021, under Sections 147, 308,
336, 427, 452, 323, 504, 506, 325 IPC and
Sections 3(1)(r) and 3(1)(s) of the SC/ST
Act, 1989, registered at Police Station Naka
Hindola, District Lucknow, in which the
appellant was granted bail by this Hon'ble
Court vide order dated 20.07.2021 passed
in Criminal Appeal No. 631 of 2021, a
copy of the bail order is annexed as
Annexure No. 18 to the affidavit filed
alongwith this appeal.

29. Several other submissions in
order to demonstrate the falsity of the
allegations made against the appellant have
also been placed forth before the Court.
The circumstances which, according to the
counsel, led to the false implication of the
accused have also been touched upon at
length. It has been assured on behalf of the
appellant that he is ready to cooperate with
the process of law and shall faithfully make
himself available before the court whenever
required and is also ready to accept all the
conditions which the Court may deem fit to
impose upon him. It has also been pointed
out that the accused is in jail since
26.03.2024 and that in the wake of heavy
pendency of cases in the Court, there is no
likelihood of any early conclusion of trial.

30. On the other hand, learned
counsel for the opposite party no.2 and 4
vehemently opposed the arguments as
advanced by learned counsel for the
appellant and submits that the appellant has
committed a heinous offence and prima
facie offence is made out against the
appellant, as such, he is not entitled to be
enlarged on bail. He further submits that
the photographs of the C.C.T.V. footage
and materials, available on record, clearly
reveal that the appellant had attacked upon
the deceased as well as the opposite parties
no.3 and 4 with intention to commit their
murder. The injury report and post mortem
report of the deceased reveal that the
appellant had caused several injuries to the
deceased by knife, which itself shows that
the appellant had attacked upon the
deceased and injured persons with an
intention to commit their murder.

31. He further submits that the
independent eye witnesses namely Yaar
Mohammad and Ratnakar Upadhyaya, both
have fully supported the prosecution story
in their statements, clearly stating that the
appellant has committed the crime in
question and the Ratnakar Upadhyaya has
also stated in his statement that when he
tried to intervene the matter then the
appellant also attacked upon him to cause
injuries by knife. He further submits that
the independent eye witnesses namely
Gaurav Sethi and Sarvan Kumar Mishra,
both have
also
fully
supported
the
prosecution story in their statements,
clearly stating that the appellant has
committed the crime in question.

32. Learned A.G.A.-I for the State
has also made an agreement with the
arguments as advanced by learned counsel
for the opposite party nos.2 and 4.

33. After perusing the record in the
light of the submissions made at the bar
and after taking an overall view of all the
facts and circumstances of this case, the
nature of evidence, the period of detention
already undergone, the unlikelihood of
early conclusion of trial and also in the
absence of any convincing material to
1112 INDIAN LAW REPORTS ALLAHABAD SERIES
indicate the possibility of tampering with
the evidence and considering the fact that
the appellant has lodged an F.I.R. just two
hours before the instant F.I.R. against the
opposite parties, which itself indicates that
it is a counter blast case; the opposite party
no.3 Arvind Kumar is a police officer
posted as Sub-Inspector at Police Line,
Lucknow and he has been suspended by the
Police Commissionerate, Lucknow for his
key involvement in the incident; it is also
clear from the CCTV footage that three
persons are attacking and assaulting the
appellant with rods and balli and the
appellant in order to save himself from the
sudden attack, used whatever he could find
on him at the time, i.e. the small knife in
his keychain to protect himself, however,
there was no intention or motive on the part
of the appellant to murder any person and
he acted only to save his own life; the
appellant in the instant case was suddenly
attacked with rods and balli by three
persons
which
created
a
reasonable
apprehension of death and grievous hurt in
his mind, thus, his actions in defending
himself were not disproportionate to the
attack he was facing; the appellant suffered
six grievous injuries during the assault by
the
opposite
parties
and
medical
examination of the appellant reveals
multiple abrasion, conture swelling and
stitched wound injury on the right side of
the head; the statements of so-called eyewitnesses, namely Yaar Mohammad and
Ratnakar Upadhyay, place the time of the
alleged incident at 10:23 PM i.e. a
difference of about 6 hours from 04:30
PM, which is the time of the alleged
incident as per the allegations levelled in
the FIR by the informant herself and
which is also what the prosecution story
has
been
throughout
and
the
said
difference, coupled with the fact that the
statements of Ratnakar Upadhyay and
Yaar Mohammad are identical to one
another and clearly tutored, render the
same wholly unreliable; significantly
around 14 residents of the society where
the alleged incident took place, gave a
written
complaint
to
the
Police
Commissioner, Lucknow, highlighting the
frequent and continued misbehaviour of
Baldev Singh Chauhan and abuse of the
position of police officer by Arvind
Kumar; it has also been highlighted in the
complaint that Baldev Singh Chauhan
and Arvind Kumar brutally assaulted the
appellant and also tried to take his life
which also lends support to the fact that
the appellant was not the instigator of the
alleged incident; there is no evidence that
would show mens rea on the part of the
appellant, which is a necessary ingredient
for an offence punishable under Section
302 IPC., as such, even if the prosecution
version is accepted uncontroverted, the
present case cannot travel beyond the
ambit of Section 304 IPC and further
considering the larger mandate of the
Article 21 of the Constitution of India
and the law laid down by the Hon'ble
Apex Court in the case of Dataram
Singh vs. State of UP and another,
reported in (2018) 3 SCC 22 and
Sukumaran (Supra), this Court is of the
view that the learned trial court has failed
to appreciate the material available on
record. The order passed by the trial court
is liable to be set aside.

34. Accordingly, the appeal is
allowed.
Consequently,
the
impugned
judgment and order dated 18.04.2024
passed by learned Special Judge, S.C./S.T.
Act, Lucknow in Bail Application No.2573
of 2024, Case Crime No.173 of 2024,
under Sections 302, 324, 504, 506, 307
I.P.C. and Section 3(2)(V) of S.C./S.T. Act,
Police Station P.G.I., District Lucknow East
7 All. Amit Bajpai Vs. State of U.P. & Ors.
1113
(Commissionerate Lucknow), whereby the
bail application of the appellant has been
rejected is hereby set aside and reversed.

35. Let the appellant, Amit Bajpai
be released on bail in the Case Crime
No.173 of 2024, under Sections 302, 324,
504, 506, 307 I.P.C. and Section 3(2)(V) of
S.C./S.T. Act, Police Station P.G.I., District
Lucknow
East
(Commissionerate
Lucknow) with the following conditions:-

(i) The
appellant
shall
furnish a personal bond with two
sureties each of like amount to the
satisfaction of the court concerned.
(ii) The appellant shall
appear
and
strictly
comply
following terms of bond executed
under section 437 sub section 3 of
Chapter- 33 of Cr.P.C.:-
(a) The appellant shall
attend in accordance with the
conditions of the bond executed
under this Chapter.
(b) The appellant shall not
commit an offence similar to the
offence of which he is accused, or
suspected, of the commission of
which he is suspected, and
(c) The appellant shall not
directly or indirectly make any
inducement, threat or promise to
any person acquainted with the
facts of the case so as to dissuade
him from disclosing such facts to
the Court or to any police officer or
tamper with the evidence.
(iii) The appellant shall
cooperate with investigation /trial.
(iv) The appellant shall file
an undertaking to the effect that he
shall not seek any adjournment on
the dates fixed for evidence when
the witnesses are present in court.
In case of default of this condition,
it shall be open for the trial court to
treat it as abuse of liberty of bail
and pass orders in accordance with
law.
(v) The appellant shall
remain present before the trial court
on
each
date
fixed,
either
personally or through his counsel.
In case of his absence, the trial
court may proceed against him
under Section 229-A of the Indian
Penal Code.
(vi) In case, the appellant
misuses the liberty of bail during
trial, in order to secure his
presence,
proclamation
under
section 82 Cr.P.C. is issued and the
appellant fails to appear before the
court on the date fixed in such
proclamation, then, the trial court
shall initiate proceedings against
him, in accordance with law, under
Section 174-A of the Indian Penal
Code.
(vii) The appellant shall
remain present, before the trial
court on the dates fixed for (i)
opening of the case, (ii) framing of
charge and (iii) recording of
statement
under
Section
313
Cr.P.C. If in the opinion of the trial
court absence of the appellant is
deliberate or without sufficient
cause, then it shall be open for the
trial court to treat such default as
abuse of liberty of bail and proceed
against him in accordance with law.

36. It is clarified that the
observations, if any, made in this order are
strictly confined to the disposal of the
prayer for bail and must not be construed to
have any reflection on the ultimate merit of
the case.
1114 INDIAN LAW REPORTS ALLAHABAD SERIES
37. The trial court is also directed
to expedite the trial of the aforesaid case by
following the provisions of Section 309
Cr.P.C., strictly without granting any
unnecessary adjournments to the parties, in
case there is no other legal impediment.
----------
(2024) 7 ILRA 1114
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.07.2024

BEFORE

THE HON'BLE RAJIV GUPTA, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 3103 of 1982

Krishna Kant & Ors. ...Appellants
Versus
State ...Respondent

Counsel for the Appellants:
Jagdish Singh Sengar, Ajay Kumar Pandey,
Anubhav Trivedi, Kunwar Mayank Singh, Ram
Lakhan Deobanshi, Sheshadri Trivedi, Shyam
Sunder Mishra, Vipin Chandra Pandey

Counsel for the Respondent:
A.G.A

(A) Criminal Law - Conviction - The Code
of criminal procedure, 1973 - Section 374
(2) - Appeals from conviction, Indian
Penal Code, 1860 - Sections 147, 148,
307/149 and 302 r.w. 149 IPC - Plea of
private defence is not applicable if the
accused
exceeds
the
limits
of
selfdefence.(Para - 57)

(B)
Evidence
Law
-
evidence
of
eyewitness, if found truthful, cannot be
discarded simply because the witnesses
were relatives of the deceased - evidence
of
interested
witnesses
should
be
subjected to scrutiny and accepted with
caution - testimony of a reliable witness
must be of sterling quality on which
implicit
reliance
can
be
placed
for
convicting the appellants. (Para - 45, 46)

(C) Evidence Law - dying declaration -
dying declaration stood on the same
footing as any other evidence - truth sits
upon the lip of a dying man - merely
because a dying declaration does not
contain the details as to the occurrence, it
is not to be rejected - merely because the
dying declaration is a brief statement, it is
not to be discarded - shortness of the
statement itself guarantees truth. (Para -
52)

Appeal was initially preferred by
five
appellants -three expired during appeal's
pendency - abated - remaining appellants
for judicial scrutiny - Appellants formed
unlawful assembly with deadly weapons -
Murder and attempted murder committed in
execution
of
common
object
-
Dying
declaration
reliable
and
trustworthy
-
Private
defence
plea
rejected
-
Imprisonment and fine imposed.(Para - 1,
54,55)

HELD: - Prosecution proved its case beyond
reasonable doubt. Conviction under Sections
147, 148, 302/149, 307/149 IPC affirmed.
Sentence modified to include fine. Trial court
correctly held that the appellants formed an
unlawful
assembly
with
deadly
weapons,
committing murder and attempted murder in
execution of their common object. Appellants
guilty of murder, attempted murder, and
rioting.(Para -55, 59)

Criminal appeal dismissed. (E-7)

List of Cases cited:

1. Bhurey Singh Vs St. of U.P., 2008 (4) ALJ 772
Alld

2. Maharaj Singh Vs St. of U.P. (1994) 5 SCC
188

3. Mohd. Muslim Vs St. of U.P. 2023 live law
(SC) 489

4. Daleep Singh Vs St. of Punj. AIR 1953 SC 364