Uttarakhand High Court
Rakesh Mali --Applicant/ vs State Of Uttarakhand on 18 September, 2025
IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
THE HON'BLE CHIEF JUSTICE MR. G. NARENDAR
AND
THE HON'BLE JUSTICE MR. SUBHASH UPADHYAY
Bail Application (IA No.1/2023)
IN
Criminal Appeal No.458 of 2023
18th September, 2025
Rakesh Mali --Applicant/Appellant
Versus
State of Uttarakhand --Respondent
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Presence:-
Mr. Ajay Joshi, learned counsel for the applicant/appellant
Mr. J. S. Virk, learned Deputy Advocate General along with Mr. Rakesh
Joshi, learned Brief Holder for the State.
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Per: Sri G. NARENDAR, C.J.
ORDER
Heard learned counsel for the
applicant/appellant and learned Deputy Advocate
General for the State.
2. This is one of the most bizarre judgments of
conviction that this Court has come across. A judgment
of conviction is rendered even without a murder
weapon. It is not that there was no description of the
weapon or that the weapon used to commit the crime
was destroyed or was not available. In fact, the
description by the witnesses is that it is a metal rod
with a sharp edge on one side and which both the
counsels otherwise describe it as a crowbar. The list of
exhibits (Annexure-2) to the judgment refers to Exhibit
P-16 as an application by the I.O. for recovering the
murder weapon and the murder weapon is described as
a stick. It is even more ironical to note that the said
application was never considered by the trial court.
3. A judgment of conviction and sentencing for
life has been passed by the trial court despite the post-
mortem report recording that the death was on account
of a myocardial infarction, which occurred nearly three
weeks after the date of the alleged assault. The date of
incident is recorded as 29.07.2019 and the date of
death is recorded as 17.08.2019. There is no
appreciation by the trial court with regard to the post-
mortem report.
4. One other reason why we are inclined to
consider the application is the lack of fair trial. PW4,
who is an eyewitness, was examined on 18.03.2021
and after the recording of the examination-in-chief, in
respect of cross-examination the Court has recorded as
under:-
"The learned advocate on behalf of the accused
refused to appear in the court for cross-
examination and said that I am no longer
representing accused in this case. When the
accused was asked to cross-examine the witness
present, the accused also refused to cross-
examine the witness. In such a situation, the
opportunity to cross-examine the witness
present in the court is closed."
5. It is apparent that the Presiding Officer is not
too well versed with criminal jurisprudence. Be that as
it may. The conviction, in our prima facie opinion, is
unsustainable in the absence of a murder weapon and
more so when the application by the I.O. contradicts
the identity of the weapon also. The nature of injury
does not appear to be appreciated by the trial court
and no finding has been rendered that the death was
on account of the assault.
6. In that view, the bail application (IA
No.1/2023) is allowed. Accordingly, the sentence
imposed under the judgment and order dated
28.06.2023 in Sessions Trial No.234/2019 by the Court
of III Additional Sessions Judge, Rudrapur, Udham
Singh Nagar hereby stands suspended. The
appellant/applicant is directed to be enlarged on bail
forthwith, if not required in any other case, subject to
appellant furnishing a bond for a sum of ₹20,000/- and
furnishing one surety for the like sum to the satisfaction
of the concerned Magistrate.
7. List for hearing in due course.
(G. NARENDAR, C.J.)
(SUBHASH UPADHYAY, J.)
Dated: 18.09.2025
Rajni
