IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD,LUCKNOW BENCH, LUCKNOW.
INDEX
IN
CRIMINAL APPEAL NO. OF 2022
(Under Section 374(2) Cr.P.C.)
DISTRICT – AMBEDKAR NAGAR
Drishtduman Dubey @ Praveen Accused-Appellant
(In Jail Since 20/12/2021)
Versus
The state of U.P. Opp. Party.
S.N Particularts of papers Dates Annex Page.
1. Memo of Criminal Appeal
2. Certified Copy of impugned
judgement and order dated
20/12/2021 passed by Learned
Special Judge, POCSO “First”,
Ambedkar Nagar.
3. Application for Bail
4. Affidavit in support of
Application for Bail.
4. Application for condonation of
delay
5. Affidavit in support of
application for condonation of
delay
7. I.D. Proof
8. Vakalatnama
LUCKNOW.
DATED:
(“ADVOCATE NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
S.T. No.65 of 2019 arising out of
Crime Case No.171 of 2018
Under section 307/34,504,506(2) I.P.C.
P.S.- Jahangeerganj, Aalapar
District- Ambedkar Nagar.
S.T. No.01 of 2021 arising out of
Crime Case No.02 of 2019
Under section 3,25,27 Arms Act.
P.S.- Aalapar
District- Ambedkar Nagar.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD,LUCKNOW BENCH, LUCKNOW.
CRIMINAL APPEAL NO. OF 2022
(Under Section 374(2) Cr.P.C.)
DISTRICT – AMBEDKAR NAGAR
Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-
Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar
………..Accused-
Appellant
(In Jail Since 20/12/2021)
Versus
State of U.P. through principle Secretary Home Department, Civil
Secretariat ….……….Opp. Party.
The Present Criminal Appeal Under Section 374 (2) Cr.P.C. Against
the Judgment And Order Dated 20/12/2021 passed by Ms. Farida Begum,
Learned Additional Sessions Judge, POCSO. First Ambedkar Nagar in
Sessions Trial No. 65 of 2019 "State of U.P. Versus Drishtduman
Dubey@Praveen Dubey and Another" arising out of Case Crime No. 171 of
2018 Under Section 307/ 34, 504, 506(2) 1.P.C. Police Station
Jahangeerganj. District- Ambedkar Nagar and in Sessions Trial No. 1 of
2021 "State of U.P. Versus Drishtduman Dubey@Praveen Dubey" arising
out of Case Crime No. 2 of 2019 Under Section 3, 25, 27 Arms Act Police
Station Anlapur, District- Ambedkar Nagar by which the Appellant have
been convicted Under Section 307/34 for 10 years rigorous imprisonment
and imposed fine of Rs. Ten Thousand, s 506(2) L.P.C. for 7 years rigoroms
imprisonment and imposed fine of Rs. Five Thousand, U/s 25 Arms Act for
1 year rigorous imprisonment and imposed fine of Rs. One Thousand and
U/s 27 Arms Act for 3 years rigorous imprisonment and imposed fine of Rs.
Two Thousand (all the punishments will run concurrently.
The present criminal appeal is being preferred on the following
amongst other grounds;
GROUNDS
1. Because the judgment and order passed by the Learned Trial Court
is against the weight of evidence available on record.
2. Because the judgment and order passed by Learned Trial Court is
based on conjectures and surmises.
3. Because the Learned Court below has appreciated those evidence,
which were not admissible in evidence.
4. Because the impugned judgment and order has been passed by the
Learned Court below without considering the facts and
circumstances of the case as well as material available on records.
5. Because the judgment and order of conviction passed by the
Learned Trial Court is contrary to the law and facts of the case.
6. Because the prosecution has not proved its case beyond all
reasonable doubts.
7. Because the prosecution is improbable and unnatural.
8. Because the Mother of the injured lodged a F.I.R. stating therein
that on 02/09/2018 at about 6.30 PM the appellar and three other
named persons attacked on his son an the appellant shot his son
with the intention on killing him, after making cooked-up story, for
falsely implicating the appellant just to harass him due to enmity.
9. Because on 02/09/2018 it was the occasion of Sri Krishna
Janmashtmi which was being celebrated at the Temple which is
adjacent to the house of Mahesh Dubey and on that occasion some
relatives of the informant were making celebratory gun firing
(Harsh Firing) and the injured victim was also present there and in
that firing he received a firearm injury from the back side of chest.
10.Because for falsely implicating the appellant and to save the real
culprit who was a relative of the informant and the injured, they
made a cooked up story and lodged a FIR on the appellant and
three other named persons due to enmity.
11.Because the injured victim who was working as Homeguard as
such he was having connection with the local police and he himself
called the SHO, P/s Jahangeerganj and managed to falsely
implicate the accused persons.
12.Because after lodging the FIR the local police visited the place of
occurrence and prepared a Map of the place of occurrence in which
the local police with the garb of the informant have neither
mentioned the house of the Mahesh Dubey nor the temple where
the festival of Shri Krishan Janamashtmi was being celebrated,
songs were being played through DJ and people were dancing,
enjoying and making celebratory gun firing (Harsh Firing) and
accidently one fire has been made on the injured victim by his
relative.
13.Because the informant, injured victim and Ram Milan Dubey have
falsely stated that the appellant and three other named persons
attacked on the injured victim.
14.Because the names of two named accused persons (Rajneesh
Dubey @ Kaka and Ravi @ Umashankar Mishra) has been deleted
during the investigation on the basis of the statements of
independent witnesses.
15.Because the independent. eye witnesses Ravi Prakash Singh, Shiv
Prakash Singh and Babita have stated before. the local police and
also before Learned Trial Court that the injured victim have
received fire arm injury due to celebratory gun firing (Harsh
Firing) which was being made by the relatives of the informant,
but the same has not been considered by Learned Trial Court.
16.Because no any eye witness has seen the appellant firing 1 on the
injured victim they have only heard the sound of fire which has
been made by the relative of the informant the same has also been
considered by this Hon'ble Court while deciding the Bail
application of the appellant during his Trial, as- "The submission is
that from the bare perusal of the FIR as well as the statement of
another witness which the State has filed alongwith the counter
affidavit, it only indicates that the people have heard that the gun
shot was fired by the applicant. It has been submitted that neither
there is any clear evidence to the aforesaid effect nor clear
statement any of the witness. Only general statement is there" and
with the above noted finding, granted Bail to the appellant during
his trial, but the same has also not been considered by the Learned
Trial Court and convicted the appellant without considering the
evidence available on record.
17.Because the local police with the garb of the injured. victim falsely
prepared the recovery memo of the gun and lodged a FIR U/s 3,
25, 27 Arms Act bearing case crime No. 2/2019 P/s Aalapur,
District- Ambedkar Nagar. It is relevant to mention here that there
is neither any independent eye witness of the alleged recovery nor
it has been properly tested in the Ballistic laboratory for
determination of fire, and in spite of sending the same to the
Ballistic laboratory the local police sent the same to the Ardmorer
of the police line, Ambedkar Nagar.
18.Because the appellant stated in his statement U/s 313 Cr.P.C. that
the local police has forcefully made him grab the gun after keeping
it in the bushes by themselves and there is no any independent eye
witness of the alleged recovery. Hence all the allegations are
baseless and on the basis of cooked up story. It is only made for
falsely implicating the appellant and nothing is in reality, and same
has also not been considered by the Learned Trial Court.
19.Because there is neither evidence nor any independent eye witness
of any occurrence as alleged by the informant but the same has not
been considered by the Learned Trial Court.
20.Because the prosecution was failed in proving the case against the
appellant beyond all reasonable doubts but Learned Trial Court has
convicted the appellant ignoring the statements of three
independent eye witnesses who has stated that the injured victim
have received fire arm injury due to celebratory gun firing (Harsh
Firing) which was being made by the relatives of the informant and
not by the appellant.
21.Because the incident and Place of incidents are doubtful. which has
not been proved beyond all reasonable doubts .. by the prosecution
as such no case is made out against the Appellant hence the
Appellant is entitled for the benefit of doubt.
22. No other Criminal Appeal or Criminal Revision is pending or filed
either before this Hon’ble Court or any Other Court against the
impugned judgement or order.
23. The appellant was on bail during his Trail.
PRAYER
It is, therefore, most respectfully prayed that this
Hon'ble Court may graciously be pleased to admit and allow the
present criminal appeal and set aside the impugned judgment and
order dated 20/12/2021 passed by Learned Additional Session
Judge, POCSO, 'First' Ambedkar Nagar in the Session trial No. 65
of 2019 "State of U.P. Versus Drishtduman Dubey @ Praveen and
another" and Session trial No. 01 of 2021 "State of U.P. Versus
Drishtduman Dubey @ Praveen Dubey", in the interest of justice.
It is further prayed that during the pendency of present criminal
appeal, this Hon'ble Court may graciously be pleased to suspend
the conviction and sentence awarded to the appellant, the appellant
be released on the bail and realization of the fine may also kindly
be Stayed.
LUCKNOW.
DATED:
(“ADVOCATE NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
S.T. No.65 of 2019 arising out of
Crime Case No.171 of 2018
Under section 307/34,504,506(2) I.P.C.
P.S.- Jahangeerganj, Aalapar
District- Ambedkar Nagar.
S.T. No.01 of 2021 arising out of
Crime Case No.02 of 2019
Under section 3,25,27 Arms Act.
P.S.- Aalapar
District- Ambedkar Nagar.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD,LUCKNOW BENCH, LUCKNOW.
CRIMINAL MISC. BAIL APPLICTION NO. OF 2011
(Under Section 389 Cr.P.C.)
IN RE:
CRIMINAL APPEAL NO. OF 2022
On behalf of
Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-
Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar
………..Accused-
Appellant
(In Jail Since 20/12/2021)
Versus
State of U.P. through principle Secretary Home Department, Civil
Secretariat ….……….Opp. Party.
To,
The Hon’ble the Chief Justice and his other companion Judges of the
aforesaid Court.
The humble application of the applicant named above Most
Respectfully Sheweth as Under:
1. That full facts and circumstances have been set-forth in the
accompanying affidavit, which forms part of this application
PRAYER.
It is, therefore, most respectfully prayed that this Hon'ble Court may
graciously be pleased to enlarge the accused –appellants on bail in the
Session trial No. 65 of 2019 "State of U.P. Versus Drishtduman Dubey @
Praveen and another" and Session trial No. 01 of 2021 "State of U.P. Versus
Drishtduman Dubey @ Praveen Dubey", during the pendency of the present
appeal before this Hon'ble Court to the satisfaction of the Court concerned.
It is further prayed that realization of fine may be stayed, during the
pendency of the present appeal before this Hon'ble Court, in the interest of
the justice.
LUCKNOW.
DATED:
(“ADVOCATE NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.
AFFIDAVIT
IN
CRIMINAL MISC. BAIL APPLICTION NO. OF 2011
(Under Section 389 Cr.P.C.)
IN RE:
CRIMINAL APPEAL NO. OF 2022
(Under Section 374(2) Cr.P.C. )
DISTRICT – AMBEDKAR NAGAR
Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-
Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar
………..Accused-
Appellant
(In Jail since 20/12/2021)
Versus
State of U.P. through principle Secretary Home Department, Civil
Secretariat ….……….Opp. Party.
Pradyumn Dwivedi Age about 33 years, S/o-
Late Goving. Dubey, R/o- Singhpur,
P/s- Jahangeerganj,
District- Ambedkar Nagar
Religion- Hindu,
Occupation- Student, Qualification Graduate)
(Deponent)
I, the deponent above named do hereby solemnly affirm and state on
oath as under:
2. That the deponent is the Real Brother of the Appellant in above noted
appeal and as such he is fully conversant with the facts and
circumstances of the case deposed here under.
3. That the Mother of the injured lodged a F.I.R. stating therein that on
02/09/2018 at about 6.30 PM the appellant and three other named
persons attacked on his son and the appellant shot his son with the
intention on killing him, after making cooked-up story, for falsely
implicating the appellant just to harass him due to enmity.
4. That on 02/09/2018 it was the occasion of Sri Krishna Janmashtmi
which was being celebrated at the Temple which is adjacent to the
house of Mahesh Dubey and on that occasion some relatives of the
informant were making celebratory gun firing (Harsh Firing) and the
injured victim was also present there and in that firing he received a
firearm injury from the back side of chest.
5. That for falsely implicating the appellant and to save the real culprit
who was a relative of the informant and the injured, they made a
cooked up story and lodged a FIR on the appellant and three other
named persons.
6. That the injured victim who was working as Homeguard as such he
was having connection with the local police and he himself called the
SHO, P/s Jahangeerganj managed to falsely implicate the accused
persons.
7. That after lodging the FIR the local police visited the place of
occurrence and prepared a Map of the place of occurrence in which
the local police with the garb of the informant have neither mentioned
the house of the Mahesh Dubey nor the temple where the festival of
Shri Krishan Janamashtmi was being celebrated, songs were being
played through DJ and people were dancing, enjoying and making
celebratory gun firing (Harsh Firing) and accidently one fire has been
made on the injured victim by his relative.
8. That the informant, injured victim and Ram Milan Dubey have falsely
stated that the appellant and three other named persons attacked on the
injured victim.
9. That the names of two named accused persons (Rajneesh Dubey @
Kaka and Ravi @ Umashankar Mishra) has been deleted during the
investigation on the basis of the statements of independent witnesses.
10.That the independent eye witnesses Ravi Prakash Singh, Shiv Prakash
Singh and Babita have stated before the local police and also before
Learned Trial Court that the injured victim have received fire arm
injury due to celebratory gun firing (Harsh Firing) which was being
made by the relatives of the informant, but the same has not beer
considered by Learned Trial Court.
11.That no any eye witness has seen the appellant firing on the injured
victim they have only heard the sound of fire which has been made by
the relative of the informant the same has also been considered by this
Hon'ble Court while deciding the Bail application of the appellant
during his Trial, as- "The submission is that from the bare perusal of
the FIR as well as the statement of another witness which the State
has filed alongwith the counter affidavit, it only indicates that the
people have heard that the gun shot was fired by the applicant. It has
been submitted that neither there is any clear evidence to the aforesaid
effect nor clear. statement any of the witness. Only general statement
is there" and with the above noted finding, granted Bail to the
appellant during his trial, but the same has also not been considered
by the Learned Trial Court and convicted the appellant without
considering the evidence available on record.
12.That the local police with the garb of the injured victim falsely
prepared the recovery memo of the gun and lodged a FIR U/S 3, 25,
27 Arms Act bearing case crime No. 2 / 2019 P/s Aalapur, District-
Ambedkar Nagar. It is relevant to mention here that there is neither
any independent eye witness of the alleged recovery nor it has been
properly tested in the Ballistic laboratory for determination of fire,
and in spite of sending the same to the Ballistic laboratory the local
police sent the same to the Ardmorer of the police line, Ambedkar
Nagar.
13.That the appellant stated in his statement U/s 313 Cr.P.C. that the
local police has forcefully made him grab the gun after keeping it in
the bushes by themselves and there is no any independent eye witness
of the alleged recovery. Hence all the allegations are baseless and on
the basis of cooked up story. It is only made for falsely implicating the
appellant and nothing is in reality, and same has also not been
considered by the Learned Trial Court.
14.That there is neither evidence nor any independent eye witness of any
occurrence as alleged by the informant but the same has not been
considered by the Learned Trial Court.
15.That the prosecution was failed in proving the case against the
appellant beyond all reasonable doubts but Learned Trial Court has
convicted the appellant ignoring the statements of three independent
eye witnesses who has stated that the injured victim have received fire
arm injury due to celebratory gun firing (Harsh Firing) which was
being made by the relatives of the informant and not by the appellant.
16.That the incident and Place of incidents are doubtful which has not
been proved beyond all reasonable doubts by the prosecution as such
no case is made out against the Appellant hence the Appellant is
entitled for the benefit of doubt.
17.That the appellant is law abiding citizen and he would neither misuse
the liberty nor there is any chance to temper with the evidences.
18.That the appellant is in Jail Since 20/12/2021. And was in jail for few
months during the investigation.
19.That the appellant is ready to furnish his bail bonds and sureties to the
satisfaction of this Hon'ble court. 19. That the appellant is totally
innocent and he has not committed any offence.
20.That there is no any other criminal history of the appellant except
abovementioned two cases.
21.That there is no any made out against the appellant as alleged.
22.That in the circumstances narrated above, it is desirable in the ends of
justice that this Hon'ble court may kindly be please to enlarge the
appellant on bail in the above noted case crime No(s), during
pendency of this Criminal Appeal.
That the contents of Para of the affidavit are true to my
personal knowledge and those of paras of the affidavit are true
on the basis of record and those of paras of the affidavit are
true on the basis of legal advice, which all the deponent believes to be
true, no part of it is false and nothing material has been concealed in it.
So help me god.
Deponent.
I, “Advocate Name” , Advocate, Allahabad High Court,
Lucknow Bench, Lucknow do hereby declare that the person making this
affidavit and alleging himself to be true, and is known to me on the basis
of record and I am satisfied that he is the same person.
(“ADVOCATE NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
Solemnly affirmed before me on this day of March, 2022
at about A.M./P.M. by the deponent who has identified by the
aforesaid Advocate.
I have satisfied myself by examining the deponent who has
understand the contents of this affidavit, which have been read over and
explained to him by me.
OATH COMMISSIONER.
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.
CRIMINAL MISC. BAIL APPLICTION NO. OF 2011
(Under Section 389 Cr.P.C.)
IN RE:
CRIMINAL APPEAL NO. OF 2022
(Under Section 374(2) Cr.P.C. )
DISTRICT – AMBEDKAR NAGAR
Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-
Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar
………..Accused-
Appellant
(In Jail since 20/12/2021)
Versus
State of U.P. through principle Secretary Home Department, Civil
Secretariat ….……….Opp.
Party.
APPLICATION FOR CONDONATION OF DELAY UNDER
SECTION 5 OF LIMITATION ACT
For the facts, reasons and circumstances as stated in the accompanying
affidavit, it is most respectfully prayed that this Hon'ble Court may
kindly be pleased to condone the delay in filing Present Criminal Appeal,
in the interest of justice.
LUCKNOW.
DATED:
(“ADVOCATE NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
IN THE HON’BLE HIGH COURT OF JUDICATURE AT
ALLAHABAD, LUCKNOW BENCH, LUCKNOW.
AFFIDAVIT IN SUPPORT OF APPLICATION FOR CONDONATION
OF DELAY
IN
CRIMINAL APPEAL NO. OF 2022
(Under Section 374(2) Cr.P.C. )
DISTRICT – AMBEDKAR NAGAR
Drishtduman Dubey @ Praveen S/o Late Goving Dubey R/o Village-
Singhpur, P/s- Jahangeerganj, Aalapar District- Ambedkar Nagar
………..Accused-
Appellant
(In Jail since 20/12/2021)
Versus
State of U.P. through principle Secretary Home Department, Civil
Secretariat ….……….Opp. Party.
Pradyumn Dwivedi Age about 33 years, S/o-
Late Goving. Dubey, R/o- Singhpur,
P/s- Jahangeerganj,
District- Ambedkar Nagar
Religion- Hindu,
Occupation- Student, Qualification Graduate)
(Deponent)
I, the deponent above named do hereby solemnly affirm and state on
oath as under:
1. That the deponent is the Real Brother of the appellant in the above
noted Criminal Appeal and as such he is well conversant with the
facts of the case deposed hereunder.
2. That the deponent is a poor student and his father is a poor farmer and
they use to earn their bread anyhow.
3. That in the situations of COVID-19 Pandemic they were unable to
arrange the counsel fee and other expenses for filing the present
criminal appeal before this Hon'ble Court.
4. That the delay in filing this Criminal Appeal is neither intentional nor
otherwise it is only due to the reason that the deponent was unable to
arrange the counsel fee and other expenses in stipulated time.
I, the above noted deponent, do hereby verify that the contents of Paras 1
to 4 of the affidavit are true to my personal knowledge. No part of it is
false and nothing material has been concealed in it.
So help me god.
Deponent.
I, “Advocate Name” , Advocate, Allahabad High Court,
Lucknow Bench, Lucknow do hereby declare that the person making this
affidavit and alleging himself to be true, and is known to me on the basis
of record and I am satisfied that he is the same person.
(“ADVOCATES NAME”)
Advocate
Counsel for the Applicant
A.O.R.- A/K/XXXX/20XX
Chamber No.(“XX”), Allahabd H.C. Lucknow Bench.
Mobile No. XXXXXXXX
Solemnly affirmed before me on this day of March, 2022
at about A.M./P.M. by the deponent who has identified by the
aforesaid Advocate.
I have satisfied myself by examining the deponent who has
understand the contents of this affidavit, which have been read over and
explained to him by me.
OATH COMMISSIONER.
