CRLA/663/2019
2022 Latest Caselaw 2931 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

                  SHRI JUSTICE S.K. MISHRA, J.

AND SHRI JUSTICE ALOK KUMAR VERMA, J.

13th SEPTEMBER, 2022

CRIMINAL APPEAL NO. 663 of 2019

Between:

Nadeem and Others                                     .....Appellants

and


State of Uttarakhand                                  .....Respondent



Counsel       for       the :    Mr. Arvind Vashistha, learned Senior
appellant.                      Advocate assisted by Mr. Hemant

Singh Mehra, learned counsel for the appellant and Mr. Priyanshu Gairola, learned Amicus Curiae for the appellant.

Counsel for the State : Mr. J.S. Virk, learned Deputy Advocate General.

Upon hearing the learned Counsel, the Court made the following

Judgment: (per Shri S.K. Mishra, J.)

These are two applications, filed by the

appellants, namely, Nadeem and Nizam, under Section

389 of the Code of Criminal Procedure, 1973, (hereinafter

referred as "the Code" for brevity), for suspension of

sentence and grant of bail to the appellants upon appeal.

As per the judgment dated 31.10.2019, passed by the

learned Additional Sessions Judge, Vikas Nagar, District

Dehradun in Sessions Trial No.136 of 2012, whereby, the

appellants have been convicted for the offence under

Section 302 read with Section 34 of the Indian Penal Code,

1860 (hereinafter referred as "the Penal Code" for

brevity), and sentenced to undergo life imprisonment and

to pay a fine of `25,000/-each, and, in default of payment

of fine, further to undergo additional imprisonment for one

year, they have been convicted for the offence under

Section 394 of the Penal Code and sentenced to undergo

rigorous imprisonment for a period of ten years and to pay

a fine of Rs.10,000/- each, and, in default of payment of

fine, further to undergo additional imprisonment for six

months, and, they have been further convicted for the

offence under Section 411 of the Penal Code and

sentenced to undergo imprisonment for a period of three

years and to pay a fine of Rs.5,000/- each, and, in default

of payment of fine, further to undergo additional

imprisonment for three months. All the sentences are

directed to run concurrently.

2. Both the applications are the second

applications. The earlier applications (CRMA No.3960 of

2019) have been rejected by a Co-ordinate Bench of this

Court on 19.11.2020. The prosecution has led into the

evidence the identification of Nadeem and Nizam in the

Court. In addition, the PW2 and PW5 have stated about

the identification of Nadeem by his voice. As far as the

other circumstance of the recovery of 50,000/- cash from

the room of the appellant-Nizam is concerned, the case of

the prosecution, in short, is that he was proceeding to jail

to meet the other two accused, and, on the way, he was

intercepted by the police, and, on search, they found gold

ornaments in his possession, which were later on identified

by PW5, and it was also identified by her in the Court at

the time of the trial.

3. Mr. Arvind Vashistha, the learned Senior

Advocate along with Mr. Priyanshu Gairola, the learned

Amicus Curiae for the appellant, would submit that the

alleged conduct of both the appellants-Nadeem and Nizam

is not probable and it is not normal human conduct to

leave Rs.50,000/-, the looted amount, in the house

without any lock, to be later on recovered by the police.

4. Mr. Priyanshu Gairola, the learned Amicus

Curiae would submit that no person, who has committed

offence of robbery and murder will carry the loot, and go

to the jail to meet the co-accused persons.

5. However, it is settled principle of law that the

human behavior cannot be predicted in any manner. How

the human brain functions is still a mystery to science and

only on the basis of the submissions that their conduct, as

alleged by the prosecution was not normal human

conduct, we are not inclined to suspend the sentence.

Moreover, we find enough material at this stage to reject

the applications, filed by both the appellants-Nadeem and

Nizam. Accordingly the applications for suspension of

sentence and grant of bail upon appeal are hereby

rejected, being devoid of merit.

6. Since, the appellants are in custody, and, the

appeal relates to the year 2019, we direct that the matter

be listed on 14.02.2023 for final disposal.

________________ S.K. MISHRA, J.

___________________ ALOK KUMAR VERMA, J.

Dt: 13th September, 2022 Neha/SB