# Vishwakant Gupta v. The State of U.P. and others

- **Citation:** (2010) 2 ILRA 447
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2009-08-04
- **Case number:** Criminal Appeal No. 752 of 2009
- **Bench:** Abdul Mateen, V.K. Dixit
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vishwakant-gupta-v-the-state-of-u-p-and-others-41576
- **Pages:** 3

## Headnote

Code of Criminal Procedure-Bail Pending
Appeal-conviction of life imprisonment
with fine-offense under Section 302/34
IPC read with 25 Arms Act-deceased
being history-sheeter encountered by
Police-informant not an eyewitness the
person who narrated the story deniedbody of deceased dragged from court to
a considerable length but no dragging
marks found-appellants were already on
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
bail before court below-no allegation of
misusing the same-held entitled for bailon deposit of half amount of fineremaining half stayed.
Held: Para 4 & 5

It has further been submitted that
appellants were on bail during trial and
they did not misuse the liberty of bail
granted to them. It has also been
submitted that the appeal will take
considerable long time for reaching on
its logical conclusion.

Learned counsel for the appellants relies
upon the judgment reported in 2009 (3)
SCC 767 and paras 23 & 24 of which is
the base of his argument.

Taking into consideration overall aspect
of the matter and without commenting
any further on merits of the case, we
find it a fit case for bail.

Let appellants-Lala @ Abdul Gaffar, Sabir
and Bakridi convicts in Session Trial No.
437 of 1996, 213 of 2000 and 518 of
1999 be released on bail on their
furnishing
personal
bond
and
two
sureties each in the like amount to the
satisfaction of the court concerned.
Case law discussed:
2009 (3) SCC 767

## Text

2 All] Vishwakant Gupta V. The State of U.P. and others
447
year and would involve him. In this letter
there is no reference about the earlier letters
dated 4.8.2009, affidavits and the letter
dated 17.8.2009. In the order dated
12.3.2010 passed by the District Magistrate,
Firozabad also there is no reference of the
earlier letters. Photostat copies of the
original application dated 15.5.2009 of Sri
Sanjay Kumar Gupta, affidavit dated
28.4.2009, affidavit dated 4.8.2009 and the
application
dated
10.3.2010
are
as
Annexures-C.A.-4, C.A.5 and C.A.7 to the
counter affidavit. The signature available on
the applications and the affidavits appear to
be the same. Therefore, on the facts and
circumstances, it appears that the plea of Sri
Sanjay Kumar Gupta that signature on the
application
dated
15.5.2009
and
the
affidavit dated 28.4.2009 are not his
signature and are forged, cannot be
accepted. It further appears that the
subsequent letter dated 4.8.2009 and the
affidavits are the subsequent creation to
defeat the right of renewal of the petitioner.
The above position also stand justified, as
the date of letters is dated 4.8.2009 and date
of licence is 29.9.2009. If the said letter
would be available perhaps the licence in
the name of the petitioner would not be
granted.

10. For the reasons stated above, we
are of the view that the petitioner's
application for the renewal has been
illegally rejected by the District Magistrate,
Firozabad. On the facts and circumstances,
the petitioner is entitled for the renewal of
the licence of the shop for the year 2010-11
in respect of the shop for which the
petitioner had a licence for the year 200910. The subsequent settlement of the shop
by lottery system in favour of respondent
no. 5 is also liable to be set aside. The
respondent is directed to return the amount,
if any, taken from respondent no. 5 along
with interest @ 10% within a period of one
week.

11. In the result, the writ petition is
allowed with cost. The order dated
7/8.4.2010, Annexure-14 to the writ
petition, is hereby set aside and the District
Magistrate, Firozabad is directed to pass an
appropriate order on the renewal application
of the petitioner in the light of the direction
given above within a period of one week
from the date of presentation of a certified
copy of this order. Cost is awarded at
Rs.2,500/-.
---------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 25.05.2010

BEFORE
THE HON'BLE ABDUL MATEEN, J.
THE HON'BLE V.K. DIXIT, J.

Criminal Appeal No. 752 of 2009

Lala @ Abdul Gaffar

 ...Petitioner
Versus
State of U.P.

 ...Respondent

Counsel for the Petitioner:
Sri S.H. Ibrahim
Sri Neeraj Sahu
Sri S.A. Abbas Zaidi

Counsel for the Respondent:
G.A.
Sri Amitabh Tripathi

Code of Criminal Procedure-Bail Pending
Appeal-conviction of life imprisonment
with fine-offense under Section 302/34
IPC read with 25 Arms Act-deceased
being history-sheeter encountered by
Police-informant not an eyewitness the
person who narrated the story deniedbody of deceased dragged from court to
a considerable length but no dragging
marks found-appellants were already on
448 INDIAN LAW REPORTS ALLAHABAD SERIES [2010
bail before court below-no allegation of
misusing the same-held entitled for bailon deposit of half amount of fineremaining half stayed.
Held: Para 4 & 5

It has further been submitted that
appellants were on bail during trial and
they did not misuse the liberty of bail
granted to them. It has also been
submitted that the appeal will take
considerable long time for reaching on
its logical conclusion.

Learned counsel for the appellants relies
upon the judgment reported in 2009 (3)
SCC 767 and paras 23 & 24 of which is
the base of his argument.

Taking into consideration overall aspect
of the matter and without commenting
any further on merits of the case, we
find it a fit case for bail.

Let appellants-Lala @ Abdul Gaffar, Sabir
and Bakridi convicts in Session Trial No.
437 of 1996, 213 of 2000 and 518 of
1999 be released on bail on their
furnishing
personal
bond
and
two
sureties each in the like amount to the
satisfaction of the court concerned.
Case law discussed:
2009 (3) SCC 767

(Delivered by Hon'ble Abdul Mateen, J.)

1. Heard learned counsel for the
appellants
and
learned
Additional
Government Advocate with respect to
prayer for bail in pending appeal.
Appellants-Lala @ Abdul Gaffar, Sabir
and Bakridi by means of judgement and
order
dated
21.03.2009
passed
by
Additional Sessions Judge, Court No. 4
Rae Bareli in Sessions Trial Nos. 437 of
1996, 213 of 2000 and 518 of 1999 have
been convicted under Section 302/34 IPC
and under Section 25 Arms Act and
sentenced for the maximum term of life
imprisonment
with
fine
stipulation
thereof.

2. We have gone through the
contents of the judgment of the learned
court below, the prosecution evidence and
lower court record.

It has been submitted by learned counsel
for the appellants that no doubt incident
had taken place at about 09.00 a.m. of
which FIR has been lodged at 11.15 a.m.
on the same day. The role assigned to the
present appellants is of firing upon the
deceased, who after receiving firearm
injuries succumbed to the same. Two
other co-accused, namely, Zafar and
Naim were assigned the role of inflicting
lathi blows upon the person of the
deceased. As per post mortem report
Wajid (deceased) had received three
firearm injuries which correspond two
entry wounds and one exit wound. It has
further been argued that after considering
the prosecution evidence, the court below
came to the conclusion, at page 46 of the
judgment, that inclusion of the names of
Zafar and Naim in the array of the
accused is false and they have been
falsely implicated as they had not
participated in the commission of crime,
as such, it has been argued by learned
counsel for the appellants that then what
remains in the evidence to prove that the
appellants
had
participated
in
the
commission of crime. Apart from it, it has
been submitted that the deceased Wajid
was history-sheeter as stated by DW-4 Taj
Mohammad
and
actually
he
was
encountered by the police and not as put
up by the prosecution. It has also been
argued that PW-1 Mohd. Ishaq, who is
complainant but not an eye-witness, had
stated that whatever has been stated by
PW-2 Nanhai alias Mustafa he has
2 All] Lala @ Abdul Gaffar V. State of U.P.
449
incorporated in the FIR although PW-2
Nanhai alias Mustafa when confronted he
stated not to have told anything to PW-1
about the occurrence.

3. It is also the case of prosecution
that after killing the deceased on a cot his
body was dragged to considerable length
and was left in open place but surprisingly
there is no dragging mark on the body of
the deceased. Although the incident is of
July 1996 there is no other eye-witnesses
count except PW-2 who is said to have
seen the occurrence even his testimony is
shaky.
Thus
while
evaluating
the
prosecution evidence, we find that the
court below has committed a manifest
error in convicting the appellants and on
the same set of evidence acquitting coaccused Zafar and Naim. In other words,
learned
counsel
for
the
appellant
submitted that if inclusion of names of
two persons were found to be false, how
for conviction of the appellants on the
basis of same evidence can be said to be
justified.

4. It has further been submitted that
appellants were on bail during trial and
they did not misuse the liberty of bail
granted to them. It has also been
submitted that the appeal will take
considerable long time for reaching on its
logical conclusion.

5. Learned counsel for the appellants
relies upon the judgment reported in 2009
(3) SCC 767 and paras 23 & 24 of which
is the base of his argument.

Taking into consideration overall aspect
of the matter and without commenting
any further on merits of the case, we find
it a fit case for bail.

Let appellants-Lala @ Abdul Gaffar,
Sabir and Bakridi convicts in Session
Trial No. 437 of 1996, 213 of 2000 and
518 of 1999 be released on bail on their
furnishing personal bond and two sureties
each in the like amount to the satisfaction
of the court concerned.

6. Realization of half of the fine is
stayed and remaining half of the fine shall
be deposited by the appellants within one
month from the date of their release on
bail.

7. The court below is directed to
transmit
to
this
Court
forthwith
photocopies of bond and sureties filed by
appellants to be preserved in the record
maintained here.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 21.4.2010

BEFORE
THE HON'BLE VIJAY MANOHAR SAHAI, J.
THE HON'BLE RAJ MANI CHAUHAN, J.

Special Appeal No. 1223 of 2006

Dwarika Singh ...Petitioner/Appellant
Versus
State of U.P. and another ...Respondents

Counsel for the Petitioner:
Sri Ashok Khare
Sri Nawal Kishore Mishra
Sri K. Shahi

Counsel for the Respondents:
Sri K.R. Sirohi
C.S.C.

Financial Hand Book: Vol-II Para 2 to 4Rule
56(C)
compulsory
retirementconstitution of Screening committeefound not proper-impugned Order of