Shalin Sharma vs State Of Uttarakhand
2023 Latest Caselaw 1759 UK

HIGH COURT OF UTTARAKHAND AT NAINITAL
     THE HON'BLE SRI JUSTICE SHARAD KUMAR SHARMA
      THE HON'BLE SRI JUSTICE ALOK KUMAR VERMA


                            4TH JULY, 2023

             THIRD BAIL APPLICATION No.13394 of 2023
                               In
         CRIMINAL APPEAL No. 212 of 2020

Shalin Sharma                                             ...Appellant

                                Versus

State of Uttarakhand                                  ...Respondent



Counsel for the Appellant        :   Ms. Bansuri Swaraj, Advocate
                                     (through video conferencing) with
                                     Ms. Soniya Chawla, Advocate for
                                     the appellant.

Counsel for the State            : Mr. J.S. Virk, Deputy Advocate
                                   General with Mr. Rakesh Joshi,
                                   Brief Holder.




Corum: Hon'ble Sharad Kumar Sharma, J.

Hon'ble Alok Kumar Verma, J.

Hon'ble Sharad Kumar Sharma, J. (Oral)

The instant Appeal has been instituted by the

appellants as a consequence of a judgment of

conviction dated 26.02.2020, as it was rendered by the

Court of Additional Sessions Judge, Ramnagar, District

Nainital, in Sessions Trial No.189 of 2013, "State vs.

Dharnidhar Sharma and Others", whereby, the

appellant no.1, who presses the bail application as of

now has been convicted for the offence under Section

302 of the Indian Penal Code, 1860, to be read with

Section 34 of the Indian Penal Code, 1860, and

consequently, he has been directed to undergo a

sentence of life imprisonment.

2. The appellant no.1 is said to be engaged in an

incident, which has chanced on 26.03.2013 allegedly

arising out of a land dispute, and it is contended by the

complainant that the accused persons had visited the

place of incident by a Maruti Car and a Bullet Motorcycle

equipped with firearms and had fired upon the victim,

who later on succumbed to his injuries.

3. The First Bail Application of the appellant was

rejected on 17.08.2021 and the Second Bail Application

was rejected on 02.09.2022 on the ground that there

was no changed circumstance, for the consideration of

the subsequent bail application. But, so far as pressing

of the third bail application is concerned, as argued by

the learned counsel for the appellant, it was altogether

under a different context with regards to the period of

incarceration and the propriety of the ballistic report,

and its bearing on trial, which itself was having a minor

contradiction obstructing to arrive at a positive

conclusion as to which of the weapons was used in the

commission of an offence.

4. The appellant no.1, who is convicted and

undergoing a sentence in pursuance of the judgment of

the conviction dated 26.02.2020, as rendered in

Sessions Trial No.189 of 2013, "State vs. Dharnidhar

Sharma and Others", presses the third bail application.

The primary argument as raised by the learned counsel

for the appellant is that the prosecution story could not

be believed upon for the reason being that in

accordance with the ballistic report, and particularly, as

per the observations, which are made in Clause 2 of the

said report submitted on 20.11.2013, she argued that

there is a doubt created as to which of the weapons

were actually used in the commission of an offence

because the ballistic report has used the language that

"These pellets may be an integral part of any no.1 (12

bore) catridge.

5. Apart from it, she argues from the

perspective that the accused persons were shown to be

riding a motorcycle along with the firearms, out of

which, Shailendra was a co-accused person who has

already been acquitted. He, too, was shown to have

been equipped with a gun. However, there is no

narration of the fact as such in the FIR with respect to

the vehicle on which they were riding that whether the

accused persons were riding on the motorcycle or in the

car, which too were found to be involved in the

commission of an offence, except for the fact as

recorded in the statement of Chhaya Devi, the eye

witness of the incident, where she has stated that

Shailendra and Shalin were travelling on the

motorcycle. She has further argued that the matter

from the perspective that with the co-accused

Shailendra already having been acquitted, therefore,

Shalin would be entitled for a parity. She has further

argued that since the appellant has already undergone

eight years of incarceration, he would be entitled to be

released on bail.

6. Having considered the submissions raised by

the counsel for the appellant, the question was posed to

the Government Advocate in order to clarify the ballistic

report with regards to as to which weapon was actually

used in the commission of the offence. He submits that

even if there is a minor contradiction or a doubt is

created from the contents of the ballistic report, then

the statement of the eye witness, that is, of Chhaya

Devi, would prevail, who has stated that it was

Shailendra who has fired at the deceased.

7. But, however, since the ballistic report itself

creates a doubt as to which weapon was actually used

in the commission of offence, coupled with the fact that

the present appellant has already served eight years of

incarceration, and the co-accused has already been

acquitted, the appellant Shalin is directed to be released

on bail, subject to furnishing of his personal bond and

two reliable sureties each in the like amount to the

satisfaction of the court concerned. However, in case if

Shalin is a holder of a passport, he would surrender the

same before the Sessions Court, and he will not leave

the country without the leave of the Court.

____________________ Sharad Kumar Shamra, J.

___________________ Alok Kumar Verma, J.

Dt: 4th July, 2023 PP/SB