CRLA/435/2021
2023 Latest Caselaw 32 UK

      IN THE HIGH COURT OF UTTARAKHAND
                 AT NAINITAL

           HON'BLE SRI JUSTICE SANJAYA KUMAR MISHRA
             HON'BLE SRI JUSTICE ALOK KUMAR VERMA
                            03rd JANUARY, 2023

               IA No.01 of 2022 (Bail Application)
                               In
              Criminal Appeal No. 435 of 2021
Between:

Chotelal                                        .......... Appellant
and
State of Uttarakhand                                ......Respondent

Counsel for the Appellant : Mr. Arvind Vashistha, learned Senior Advocate.

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 under Section 389 of

the Code for suspension of sentence and grant of bail upon

appeal to appellant, namely, Chotelal, who has been

convicted for the offence under Sections 302 and 201 of the

Penal Code and sentenced to undergo life imprisonment

under Section 302 of Penal Code with default sentence on

non-payment of fine of Rs. 10,000/-, and rigorous

imprisonment for a period of 5 years under Section 201 of

the Penal Code, with a default sentence on non-payment of

fine of Rs. 5,000/-, by the Court of the learned Session

Judge, Pithoragarh in S.T. No. 14 of 2021 by virtue of

judgment and order dated 09.09.2021. All the sentences

are directed to run concurrently.

2. The only material available against the present

appellant is the retracted confessional statement made before

the Judicial Magistrate, Didihart, District Pithoragarh. The

learned Additional Sessions Judge also relied upon the fact that

the appellant was absconding for twenty years.

3. We have carefully examined the confessional

statement recorded which is retracted, recorded by the

Magistrate and we are of the opinion that the entire statement

has to be taken into consideration. Only the inculpatory part of

the confessional statement cannot be relied upon excluding

exculpatory statement of the appellant.

4. In this case, the appellant categorically stated that he

was sodomised, therefore, he committed the murder of the

deceased.

5. Moreover, the appellant is a permanent resident of

Village Tharia, Nijawat Kha, P.S. Cant. Bareilly, district Bareilly,

Uttar Pradesh.

6. Keeping in view the aforesaid considerations, we are

inclined to allow the application of suspension of sentence and

grant of bail upon appeal. Accordingly, the bail application is

allowed. The sentence is hereby suspended. The appellant -

Chotelal be released on bail on suitable terms and conditions as

deemed just fit and proper by the learned Session Judge,

Pithoragarh, in aforesaid case.

7. List this case on 02.05.2023 for final disposal.

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

(Alok Kumar Verma, J.) (Sanjaya Kumar Mishra, J.) 03.01.2023 Pant/SB