CRLA/318/2019
2022 Latest Caselaw 2733 UK

               Office Notes,
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      Date                                           COURT'S OR JUDGES'S ORDERS
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                                 I.A. Nos. 13606 of 2022
                                 CRLA No. 318 of 2019
                                 Shri Sanjaya Kumar Mishra, J.

Shri Alok Kumar Verma, J.

Shri Rakesh Thapliyal, learned Sr. Advocate assisted by Shri Lali Sharma, learned counsel for the appellant no. 1 / applicant.

Shri J. S. Virk, learned Deputy Advocate General with Shri Rakesh Kumar Joshi, learned Brief Holder for the State.

This is the second successive application of appellant no. 1 under Section 389 of the Code of Criminal Procedure, 1973 (hereinafter referred to as "Code" for brevity) for suspension of sentence and grant of bail.

It is borne out from the records that on 21.07.2020, application of appellant no. 1 under Section 389 of the Code was rejected by the Coordinate Bench. It is apparent from the records that he has been convicted under 302 / 34 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- vide judgment and order dated 13.06.2019 passed by 1st Additional Sessions Judge, Haridwar in Session Trial No. 144 of 2008.

Learned Sr. Counsel for the appellant no. 1/ applicant would argue that four eye witnesses have turned hostile; and the death medical summary and medico legal report reveal that the death of the deceased was caused due to accidental burst of stove. However, it further apparent from the records that out of the four eye witnesses, only two have turned hostile by not supporting the case of the prosecution. Two witnesses namely PW3 & PW10 initially supported the prosecution. They were recalled after four years and on recall, they have supported the case of defence and stated that they have not seen the occurrence. They have been cross examined by the prosecution with respect to their statements recorded under Section 161 of the Code, after obtaining permission of the court.

At this stage, when the application of appellant no. 1/ applicant was once rejected on 21.07.2020 and it appears that two witnesses i.e. PW3 - Pammi and PW10 - Vikky, who supported the prosecution case, at the initial stage, were most probably gained over by the defence.

We are inclined to accept those evidence, which is admissible appearing in their statements, by relying upon the reported case of Hon'ble Supreme Court in Sat Pal Vs. Delhi Administration, (1976) 1 SCC 727.

In that view of the matter, this Court is of the opinion that this is not a fit case for suspension of the sentence and grant of bail upon appeal. Therefore, I.A. No. 13606 of 2022 is rejected.

Since appellant no. 1 is stated to be in custody and the case pertains to the year 2019, list the matter in the fourth week of February, 2023 for hearing.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 30.08.2022 (Grant urgent certified copy of this order, as per Rules.) SKS