DHAUKAL SINGH Vs. STATE OF U P

JUDGEMENT

(1.) HEARD learned counsel for the appellant and AGA for the State on the prayer of bail of appellant Dhokal Singh, who has been convicted and sentenced under section 302/34 IPC by the Additional Sessions Judge, Court No. 9, Gorakhpur, vide judgment dated 19. 03. 2008 passed in S. T. No. 01 of 2004 (State vs. Dhokal Singh and others), P. S. Sahjanwa, District Gorakhpur. We have also perused the trial court record and other materials including impugned judgement.

(2.) LEARNED counsel for the appellant argued that the co-accused Paras Nath Kewat and Teeju Kewat have already been released on bail by this Court vide order dated 19. 08. 2008 passed in Crl. Appeal No. 2230 of 2008 and since the case of the appellant is also identical to the co-accused, hence on the ground of parity the appellant is also entitled for bail. Learned counsel for the appellant further argued that present appellant had relations with the deceased. Numerous persons came to have drink on the eve of Deepawali festival, about whom he was not well aware. Thus, the case of the appellant cannot be said to be distinct from other co-accused only on the ground of the averments of carrying the deceased from his house as alleged the prosecution witnesses. He further argued that the witnesses produced by the prosecution are unreliable and chance witnesses. Much criticism has been made about the statement of P. W. 4, who is the resident of distant place about 30 km. away from the place of the incident. It is submitted that P. W. 4 is merely a chance witness. According to the statement of P. W. 4 Ram Kishun, after celebration of the festival of Deepawali, at the house of his In-laws, he was returning to his village in the night when he saw that the appellant and other accused persons were thrashing the deceased. Learned counsel for the appellant also argued that the presence of the other witnesses is also doubtful. It is further submitted that the appellant was on bail during trial and he had not misused the bail.

(3.) LEARNED AGA opposed the prayer of bail and argued that the ground of parity is not available to the appellant Dhokal Singh. Besides the statement of P. W. 4 regarding thrashing of the deceased along with other accused persons, there is also the evidence that the appellant Dhokal Singh had carried the deceased from his house at about 10. 00 p. m. on the day of incident and thereafter his dead body was recovered next morning at about 5. 00 a. m. In view of the Provisions of Section 106 of Indian Evidence Act, burden of proof lies on the appellant, but the appellant could not explain as to when he separated himself from the company of deceased after carrying him from his house.