Uttarakhand High Court
CRLA/121/2022 on 19 October, 2022
SL. Office Notes,
No. Date reports, orders or COURT'S OR JUDGE'S ORDERS
proceedings or
directions and
Registrar's order
with Signatures
IA No. 1 of 2022
In
CRLA No. 121 of 2022
Hon'ble Sanjaya Kumar Mishra, J.
Hon'ble Alok Kumar Verma, J.
Mrs. Pushpa Joshi, learned Senior Counsel
assisted by Ms. Chetna Latwal, learned counsel
for the appellant.
Mr. J. S. Virk, learned Deputy Advocate
General with Mr. Rakesh Kumar Joshi, learned
Brief Holder for the State of Uttarakhand.
Heard on the bail application.
This application has been filed by the
appellant under Section 389 of the Code of
Criminal Procedure, 1973 (hereinafter referred
to as "the Code" for brevity) for grant of bail
and suspension of sentence upon appeal.
The appellant has been convicted for the
offence punishable under Section 302 of I.P.C.
and under Section 25/27 of the Arms Act, 1959
and sentenced to undergo imprisonment for life
and to pay a fine of Rs. 50,000/- with default
stipulation and under Section 25/27 of the Arms
Act, 1959, sentenced to undergo 07 years
rigorous imprisonment and to pay a fine of Rs.
20,000/- with default stipulation by the learned
4th Additional Sessions Judge, Haridwar in
Sessions Trial Nos. 216 of 2016 and 217 of
2016 as per the judgment dated 05.03.2022.
The appellant was on bail during course of
trial and there is no allegation from the side of
the prosecution that he misused the liberty
granted to him.
Admittedly, the case of the prosecution is
based entirely on circumstantial evidence.
The learned 4th Additional Sessions Judge,
Haridwar has recorded 15 different
circumstances. This Court after hearing Ms.
Pushpa Joshi, learned Senior Counsel appearing
for the appellant would come to a conclusion
that on many scores, while discussing the
circumstantial evidence, the learned 4th
Additional Sessions Judge, Haridwar has
recorded erroneous factual findings.
For instance, Circumstance No. 1, the
learned 4th Additional Sessions Judge,
Haridwar has recorded that PW - 2, PW - 3,
PW - 5 and PW - 7 have stated that there was
illicit relationship between the wife of the
deceased and the appellant and that the
deceased caught them together. However, after
going through the evidences of all these
witnesses, we don't find any material to support
this finding. Moreover, the gun, that was
recovered, was not sent to the ballistic
examination by the Investigating Officer, but it
was sent by the S.H.O. concerned who took up
the investigation of the case and there is no
specific evidence connecting the seizure of the
fire arm from the possession of the appellant.
In that view of the matter, there is a
statable probability that the appeal may be
allowed, in the ultimate analysis.
Appellant - Brijesh Kumar is a permanent
resident of Gram Noorpur Nagaliya, Thana
Shikarpur, District - Bulandshahar, Uttar
Pradesh. Presently residing at Shiv Vihar
Colony, Dhanori Road, near Ganpati Farm
House, Bahadrabad, District - Haridwar,
Uttarakhand, hence, there no reasonable
apprehension of his absconding from the
process of justice.
In that view of the matter, this Court is
inclined to suspend the sentence of the
appellant and grant bail to him during the
pendency of the appeal.
Thus, the bail application under Section
389 of the Code is allowed. The sentence is
suspended.
Let the appellant - Brijesh Kumar be
released on bail on suitable terms and
conditions as the learned 4th Additional
Sessions Judge, District - Haridwar deems just
and proper.
Since the bail application is allowed, the
matter be listed on 12.04.2023 for final
disposal.
The bail application (IA No. 01 of 2022)
stands disposed of.
(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.)
19.10.2022
A/-
