# Pushpendra Giri v. State of U.P - **Citation:** (2024) 12 ILRA 370 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-12-16 - **Case number:** Criminal Misc. Bail Application No. 53254 of 2023 - **Bench:** Vikram D. Chauhan - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pushpendra-giri-v-state-of-u-p-54533 - **Pages:** 3 ## Headnote Criminal Law - Indian Penal Code, 1860 - Sections 323 & 307/34 - Arms Act, 1959 - Prayer to release on bail - Applicant is in jail for more than two years and he has no criminal history and languishing in jail since 14.12.2022 - Considering the facts and circumstances of instant case, nature of offence, evidence, complicity of accused and relying on judgment of R.D. Upadhyay (infra), in which Apex Court held that those undertrials who are facing trial for attempt to murder for more than 2 years, are directed to be released on bail forthwith to satisfaction of respective trial courts - Thus, applicant entitled to bail, directions accordingly. (Para 6, 8) Bail application allowed. (E-13) List of Cases cited: R.D. Upadhyay Vs St. of A.P. & ors., 1996 (3) SCC 422 ## Text 370 INDIAN LAW REPORTS ALLAHABAD SERIES (2024) 12 ILRA 370 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 16.12.2024 BEFORE THE HON'BLE VIKRAM D. CHAUHAN, J. Criminal Misc. Bail Application No. 53254 of 2023 Pushpendra Giri ...Applicant Versus State of U.P. ...Opposite Party Counsel for the Applicant: Brij Raj Singh Counsel for the Opposite Party: G.A., Geetam Singh Criminal Law - Indian Penal Code, 1860 - Sections 323 & 307/34 - Arms Act, 1959 - Prayer to release on bail - Applicant is in jail for more than two years and he has no criminal history and languishing in jail since 14.12.2022 - Considering the facts and circumstances of instant case, nature of offence, evidence, complicity of accused and relying on judgment of R.D. Upadhyay (infra), in which Apex Court held that those undertrials who are facing trial for attempt to murder for more than 2 years, are directed to be released on bail forthwith to satisfaction of respective trial courts - Thus, applicant entitled to bail, directions accordingly. (Para 6, 8) Bail application allowed. (E-13) List of Cases cited: R.D. Upadhyay Vs St. of A.P. & ors., 1996 (3) SCC 422 (Delivered by Hon'ble Vikram D. Chauhan, J.) 1. Heard learned counsel for the applicant, learned A.G.A. for the State and perused the record. 2. The present Bail Application has been filed with the prayer to grant bail to the applicant - Pushpendra Giri, in Case Crime No. 530 of 2022, under sections 323,307/34 I.P.C. and Section 3/25/27 Arms Act, Police Station Soron, District Kasganj. 3. Learned counsel for the applicant has relied upon the judgment passed by Apex Court in R.D. Upadhyay Vs. State of A.P. and others, 1996 (3) SCC 422. As per learned counsel for the applicant the applicant is aged about 59 years. 4. It is submitted by learned counsel for the applicant that the trial is not proceedings in the matter and the applicant is entitled to be enlarged on bail in view of the judgment passed by the Apex Court in R.D. Upadhyaym (supra). 5. Learned A.G.A. does not dispute the factual matrix of the case as well as the judgment of the Apex Court in the case of R.D. Upadhyay (supra). 6. It is to be seen that the applicant is in jail for more than two years. The applicant has no criminal history and is languishing in jail since 14.12.2022. 7. The Apex Court in the case of R.D. Upadhyay (supra) has directed release on bail of the accused person who are charged with cheating after detention of more than one year. In this respect, paragraph 3 of the aforesaid judgment is quoted hereunder:- "3. So far as the cases regarding attempt of murder are concerned, we direct 12 All. Pushpendra Giri Vs. State of U.P. 371 that the cases which are pending for more than 2 years, the undertrials shall be released on bail forthwith to the satisfaction of the respective trial courts. Persons facing trial for Kidnapping, Theft, Cheating, Arms Act, Counterfeiting, Customs, under Section 326 I.P.C., under Section 324 I.P.C., Riots and under Section 354 I.P.C. who are in jail for a period of more than one year, shall be released on bail forthwith to the satisfaction of the trial courts concerned. There may be cases where the undertrial persons may not be in a position to furnish sureties etc. In those cases, the trial courts may be in a position to furnish sureties etc. In those cases, the trial courts may consider -- keeping in view of the facts of each case especially the period spent in jail - - releasing them on bail by furnishing personal bonds." 8. Considering the facts and circumstances of the case, the judgment passed by Apex Court in the case of R.D. Upadhyay (supra), nature of offence, evidence, complicity of the accused, submissions of learned counsel for the parties and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed. 9. Let the applicant Pushpendra Giri involved inCase Crime No. 530 of 2022, under sections 323,307/34 I.P.C. and Section 3/25/27 Arms Act, Police Station Soron, District Kasganj be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:- i. The applicant will not tamper with the evidence during the trial. ii. The applicant will not pressurize/intimidate the prosecution witness. iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted and/or the applicant shall make himself available for interrogation by a police officer as and when required. iv. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected. v. The applicant 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. vi. The applicant shall not leave India without the previous permission of the Court. vii. In the event, the applicant changes his residential address, the applicant shall inform the court concerned about new residential address in writing. 10. In case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court. 11. The trial court is directed to proceed with the trial without granting unnecessary adjournments to any of the party. ---------- 372 INDIAN LAW REPORTS ALLAHABAD SERIES (2024) 12 ILRA 372 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 20.12.2024 BEFORE THE HON'BLE MANOJ KUMAR GUPTA, J. THE HON'BLE MANISH KUMAR NIGAM, J. Criminal Appeal No. 602 of 2019 Lavkush ...Appellant Versus State of U.P. ...Respondent Counsel for the Appellant: Dinesh Kumar Gupta, Pragyan Kumar Mishra, Sharad Mayank Pandey Counsel for the Respondent: G.A. Criminal Law - Criminal Law - Criminal Procedure Code, 1973 - Sections 145, 157, 161, 161(1), 162, 162(1), 162(2), 164, 172(2), 173(2), 207 & 313 - Indian Penal Code,1860 - Sections 34, 120-B & 302 - Arms Act, 1959- Section 25 - Evidence Act, 1872- Sections 27, 32, 145, 155(3) & 165 - Appeals - against conviction & sentence - offence of murder - FIR - informant lodged alleged that his brother (accused person) was a vagabond & drunkard having illicit relationship with wife of his neighbour and when his mother used to dissuade him from having relationship with neighbour accused brother shot his mother dead - investigation - recovery - chargesheet against accused person and neighbour - Session trail - neighbour was acquitted but accused were conviction & sentenced - Appeals - Evaluation of evidences - court finds that, - (i) PW-3 (informant) was not an eye witness and evidence of eye witnesses i.e. PW-1 & PW-2 are not reliable as there are improvements in their St.ments amount to contradiction, (ii) ocular evidence is not supported by the medical evidence as such court not satisfied with the truthfulness of the ocular evidence, (iii) prosecution failed to bring on record, the report of the ballistic expert to whom the recovered Tamancha and cartridge were sent for examination, as such there is no evidence to connect the weapon allegedly used by the accused with the pallets recovered from the body of the deceased, (iv) recovery of Tamancha is also not accordance with provisions of Section 27 of the Evidence Act, (v) Trial court committed an error while acquitting neighbour in relying upon a part of the same evidence and convicting the accused-appellant, - Held, - prosecution has failed to substantiate the charges levelled against the accused-appellant beyond all reasonable doubts by adducing consistent, cogent and reliable evidence - therefore, accused-appellant is legitimately entitled to avail the benefit of doubt - appeal stand allowed - directions issued, accordingly. (Para - 69, 70, 71, 72) Appeal allowed. (E-11) List of Cases cited: 1. Sessions Judge Nellore Referring & ors. Vs Intha Ramana Reddy; reported in ILR (1972) AP 683 (1972) CRILJ1485. 2. Shri Gopal & anr. Vs Subhash & ors.; reported in 2004 (13) SCC 174, 3. St. of Rajasthan Vs Rajendra Singh 1998 SCC (Cri) 1605, 4. Munna Pandey Vs St. of Bihar; reported in 2023 SCC Online SC 1103, 5. Rahul Vs St. of Delhi, Ministry of Home Affairs & anr. reported in (2023) 1 SCC 83, 6. Subramanya Vs St. of Karn.; reported in A.I.R. 2022 SC 5110, 7. Ramanand @ Nandlal Bharti Vs St. of U.P.; reported in A.I.R. 2022 SC 5273, 8. Gurcharan Singh & anr. Vs St. of Pun., reported in 1963 AIR (SC) 340, 9. Ram Singh Vs St. of U.P. reported in 2024 AIR (SC) 1176.