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Sarvesh Kumar v. State Of U.P. - CRIMINAL APPEAL No. 5900 of 2004 [2007] RD-AH 5149 (22 March 2007)


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Court No.45

Criminal Appeal No.5900 of 2004

Sarvesh Kumar ........ Appellant


State of U.P. .......... Opposite Party

Hon'ble R.C. Deepak, J.

Hon'ble K.N. Ojha, J.

The appellant-accused Sarvesh Kumar has filed this Criminal Appeal against the judgment and order dated 27.10.2004 passed by the learned Addl. Sessions Judge, Fast Track Court I, Farrukhabad in Sessions Trial No.217 of 1999 arising out of case crime no.94 of 1999 whereby he has convicted the appellant under Section 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act pertaining to police station Kayamganj, District Farrukhabad. The appellant has made a prayer therein for his release on bail.

The appeal was admitted, the trial court's record was called for and after the receipt of the trial court's record, the prayer for his release on bail is being heard and is disposed of accordingly.

The brief facts of the case are that Tripti, the deceased, was the wife of the appellant. It is alleged that the appellant along with his wife was coming back from Farrukhabad to his residence on 23.3.1999, but with the conspiracy of his family members for demand of dowry, the appellant committed her murder and in order to save his skin he went to his village and disclosed to the villagers that some miscreants had caused injuries to his wife. It is further alleged that the deceased, while alive, was shifted to Kayamganj Hospital from where she was referred to Lohia Hospital, Farrukhabad, but she could not be saved.

Heard Sri V.C. Mishra, learned senior advocate assisted by Sri P.C. Misrha, learned counsel for the appellant-accused, Sri A.B. Maurya, learned counsel for the informant, learned A.G.A. for the State and perused the record.

Learned counsel for the appellant-accused has argued as follows:

i.That the appellant was with the company of the deceased when the firearm injuries were caused to the deceased. The appellant carried her to P.H.C., Kayamganj, Farrukhabad and got her admitted the same day at 8:00 p.m., as is evidently clear from the injury report;

ii.that there is none to have witnessed that the appellant caused firearm injuries to his wife. Had he caused injuries or got the injuries caused to her, he would have not left her alive and would have not taken her to the hospital to create an evidence against him in case she would have survived and in support of his contention he has drawn the attention of the Court towards the evidence of defence witnesses Prem Chandra, Pratap, Bhoora Singh, Krishan Pal Singh and Rajan;

iii.that the informant and his family members appeared to have a suspicion that the appellant would have eliminated his wife, but there is no evidence or circumstance to convert the suspicion to be true;  

iv.that there is no evidence on record to suggest that there was actually a demand of dowry and the appellant has caused injuries to the deceased;

v.that the undisputed letters written by the deceased do not disclose any harassment by the appellant in regard to the demand of dowry and there is no disclosure of any demand of dowry therein;

vi.that the conviction of the appellant has been recorded under Section 304-B IPC. It is the appellant to explain the injuries on the person of the deceased in absence of any eye-witness and in case of alleged demand of dowry the appellant has fully disclosed the circumstances under which the deceased suffered firearm injuries.

On the other hand, learned counsel for the informant and the learned A.G.A. submit that the appellant was all alone with the deceased and there are four firearm injuries on the person of the deceased, but the appellant did sustain even no scratch. Had he not caused injuries and some miscreants with intend to rob the ornaments of the deceased have caused injuries to her, they must have caused injuries to the appellant also. Therefore, the appellant appears to have projected a false case that the injuries were caused to his wife by some miscreants. However, they could not point out the evidence in regard to it.

We have taken into account the arguments of the learned counsel for the parties, the evidence on record and the facts and circumstances of the case, but without ventilating any opinion on the merit thereon, we are of the view that in the interest of justice and equity both the appellant appears to have made out a case for his release on bail at this stage.

Consequently, the appellant Sarvesh Kumar convicted under Sections 304-B, 498-A IPC and Section 3/4 of Dowry Prohibition Act in S.T. No. 217 of 1999, Police Kayamganj, District Farrukhabad shall be released on bail on his furnishing a personal bond of Rs.50,000/- with two sureties each in the like amount to the satisfaction of the court concerned.

The realisation of fine imposed upon the appellant-accused shall remain stayed during the pendency of his appeal before this Court.

Dated : 22nd  March, 2007.




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