CRLA/427/2018
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      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           HON'BLE SRI JUSTICE SANJAYA KUMAR MISHRA
             HON'BLE SRI JUSTICE ALOK KUMAR VERMA
                        11th JANUARY, 2023

            CRMA No.11505 of 2018 (Bail Application)
                              In
              Criminal Appeal No.427 of 2018
Between:

Deepak Rikhari                              .......... Appellant
and
State of Uttarakhand                         ......Respondent

Counsel for the Appellant : Ms. Pushpa Joshi, learned Senior Advocate assisted by Ms. Chetna Latwal, learned counsel.

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

Upon hearing the learned counsel for the parties, this Court made the following judgment:

(Per: Sri SANJAYA KUMAR MISHRA, J.)

This is an application filed by the appellant - Deepak

Rikhari, under Section 389 of the Code of Criminal Procedure,

1973 (hereinafter referred to as "the Code" for brevity) for

suspension of sentence and grant of bail upon appeal. As per the

order dated 28.03.2018, passed by the learned Sessions Judge,

Almora in Sessions Trial No. 11 of 2017, the appellant, namely,

Deepak Rikhari has been convicted under Sections 302, 315,

498A read with 34 of IPC, and has been sentenced to undergo

life imprisonment along with a fine of Rs. 10,000/- under Section

302 of IPC and in default of payment of fine, he shall undergo

one year additional simple imprisonment. The appellant has

further been convicted under Section 315 of IPC and has been

sentenced to undergo five years rigorous imprisonment. The

appellant has further been convicted under Section 498A read

with Section 34 of IPC and has been sentenced to undergo three

years rigorous imprisonment along with a fine of Rs. 5,000/- and

in default of payment of fine, he shall undergo three months

simple imprisonment.

2. It is borne out from the record that he was charged

for the offence under Sections 498A, 304B and 315/34 of the

Indian Penal Code, 1860 (hereinafter referred to as "the IPC"

for brevity). Though, he has been acquitted of the offence

under Section 304B read with Section 34 of the IPC; he has

been convicted for the offence under Section 302 the IPC.

3. Ms. Pushpa Joshi, learned Senior Advocate, would

empathetically submit that there is no material on record to

establish the offence of murder against the appellant, therefore,

it is argued that the sentence should be suspended and he

should be released on bail. Moreover, the learned Senior

Advocate submitted that the appellant is in jail since July, 2017.

4. The learned Deputy Advocate General for the State

would submit that, even, if the Court comes to the conclusion

that the offence under Section 302 of the IPC has not been

brought home by the prosecution then also the facts of this

case reveals that the prosecution has proved its case beyond its

reasonable doubt as per the offence under Section 304B of the

IPC is concerned, he would also rely upon a judgment of this

Court in the case of Indra Singh vs. State of U.P. 2011 (1)

U.D., 206, wherein in a similar factual situation, the appellant

was convicted for the offence under Section 304B of the IPC by

this Court, though, the appeal was preferred against the

conviction under Section 302 of the IPC by the appellant

himself. Thus, there is no dispute that when there is already a

charge under Sections 304B and 302 of the IPC and the learned

Trial Judge has convicted the appellant for the offence under

Section 302 of the IPC and acquitted him for the offence under

Section 304 of the IPC, but, there is no material evidence on

record to come to the conclusion that the prosecution has

proved its case beyond reasonable doubt as far as Section 304B

of the IPC is concerned and the Court in an appeal can convict

the appellant for that offence and acquit him of the offence

under Section 302 of the IPC. However, it is also submitted by

the learned Senior Advocate for the appellant that, in case,

conviction under Section 304B of the IPC is concerned the

minimum sentence is seven years and the maximum sentence

is imprisonment for life with fine. In order to impose the

maximum sentence certain reasons have to be given,

otherwise, the minimum sentence should be awarded to the

appellant and in that view, and in view of the matter that he is

in custody since 2017, which makes it about five years and six

months in custody, the sentence should be suspended.

5. In that view of the matter, we are agree with the

learned Senior Advocate for the appellant, hence, bail

application is allowed. The sentences are suspended. The

appellant - Deepak Rikhari be released on bail on such suitable

terms and conditions as deemed just fit and proper by the

learned Sessions Judge, Almora in Sessions Trial No. 11 of

2017, in aforesaid case.

6. List this case on 17.05.2023 for final disposal.

7. Grant urgent certified copy of this order as per Rules.

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 11.01.2023 PP/SB