Allahabad High Court
Brajmohan vs State Of U.P. on 2 June, 2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2025:AHC:94369
Court No. - 53
Case :- CRIMINAL APPEAL No. - 11534 of 2024
Appellant :- Brajmohan
Respondent :- State of U.P.
Counsel for Appellant :- Ajay Kumar Dwivedi
Counsel for Respondent :- G.A.
Hon'ble Nalin Kumar Srivastava,J.
Order on appeal:
List this appeal for hearing in due course.
Order on Criminal Misc. Suspension of Sentence Application No. 01 of 2024.
1. This Criminal appeal under Section 374 (2) of the Criminal Procedure Code has been preferred by the appellant Brajmohanagainst the conviction and sentence recorded vide judgment and order dated 06.11.2024 passed by Additional Session Judge, Court No. 11, Etawah in Session Trial No. 1860 of 2022 (State versus Brajmohan), arising out of Case Crime No. 39 of 2013 under Section 364 I.P.C., P.S. Balrai, District-Etawah whereby the trial Court has convicted the appellant and sentenced him under Section 364 I.P.C. for 10 years rigorous imprisonment, with a fine of Rs.10,000/- and in default of payment of fine additional three years imprisonment.
2.Heard learned counsel for the appellant-applicant as well as the learned A.G.A. for the State.
3. By means of the application, the appellant-applicant seeks suspension of sentence/grant of bail.
4.The prosecution has come forward with the case that the abductee Pradeep Kumar was taken away by the present accused appellant Brajmohan on the pretext of drinking cold drink in a family marriage ceremony and thereafter he was not seen by anyone. It was further mentioned in the F.I.R. that the incident occurred due to family property dispute and till now the abductee Pradeep Kumar is missing. After lodging of the F.I.R. investigation started and after initiation of F.I.R. the present Brajmohan was convicted under Section 364 I.P.C. and was sentenced for 10 years R.I. and fine of Rs. 10,000/- along with fifty percent of the total fine under Section 357 Cr.P.C. be given as compensation.
5. It has been submitted by learned counsel for the appellant-applicant that the appellant is innocent and has falsely been implicated. It has been further submitted that the conviction and sentence imposed by the learned trial Judge is against the weight of evidence on record. The trial court has misread the evidence on record and convicted the appellant. The prosecution has not been able to prove its case beyond reasonable doubt. It has been further submitted that the appellant was on bail during trial and has not misused the liberty of bail..It is further submitted that a family property dispute which is said to be the real cause behind the incident has no substance as the property was already mutated in the name of abductee Pradeep Kumar and, as such, the appellant had no motive at all to commit the crime. It is further submitted that the application under Section 156(3) Cr.P.C. was moved by the appellant himself in this connection but, however, after a long litigation he had not found any relief from the Court. It is further submitted that the appellant has no criminal history to his credit and he is languishing in jail since 06.11.2024.Since there is no likelihood of early hearing of the appeal in near future, the appellant may be released on bail pending appeal. It is also submitted that he is also on bail during the course of investigation and now he is entitled for grant of bail and suspension of sentence.
6. Per contra, learned A.G.A. has vehemently opposed the bail application and submitted that the prosecution story is based upon true facts and has been corroborated by the eye witness account of two witnesses of fact who have seen the appellant taking away the abductee Pradeep Kumar on the false pretext of drinking cold drink and since then the abductee was never seen by anyone. It is also submitted that it is very significant to see that the abductee was not recovered so far. Since, the evidence of last seen together was available against the applicant, the burden was upon the appellant under Section 106 of the Evidence Act to show as to where he left the abductee, but no explanation or defence evidence has been offered by the present appellant during the whole trial.
7.There is a difference between grant of bail under Section 439 Cr.P.C. in a case of pre trial and suspension of sentence under Section 389 Cr.P.C. for grant of bail post conviction, as in a case of post conviction bail there is a finding of guilt and question of presumption of innocence does not arise, therefore, the principle of bail being the rule and jail an exception is not attracted in such cases. The discretion under Section 389(1) Cr.P.C. is to be exercised judiciously and the Court is under an obligation to consider, whether any cogent grounds were disclosed which might give substantial doubts about the validity of conviction and whether there is a likelihood of unreasonable delay in disposal of appeal. Supreme Court in a recent judgment passed in Preet Pal Singh vs. State of U.P. and another, (2020) 8 SCC 649 held as under:
"In considering an application for suspension of sentence, the Appellate Court is only to examine if there is such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that has been considered by the Trial Court, it is not open to a Court considering application under Section 389 to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail."
8.In view of the facts and circumstances of the case, particularly keeping in view the fact that the last seen evidence was against the accused appellant and the victim was not traced out since then and he was a young person and was having a family, I find it a grave and serious offence. In my view, the present accused applicant is not entitled for any assistance by this Court for grant of bail and suspension of sentence in his favour. At this stage, I do not find it a fit case for suspending the sentence and enlarging the appellant-applicant- Brajmohanon bail.
9. Accordingly, the application for bail and suspension of sentence is rejected.
Order Date :- 2.6.2025
SY
