Lallan @ Devi Prasad and Others vs State of U.P.

We have heard Learned Counsel for parties and perused the record.

Learned Counsel for appellants submitted that there is an inordinate delay inasmuch as the incident took place on 28.09.2006 at about 11.30 p.m whereas, the F.I.R was lodged on 29.09.2006 at 3.20 p.m. Learned Counsel also submitted that the prosecution has attributed a weak motive in so far as the dispute over lands sold to Kamlesh and brother Rakesh by a sale-deed by their uncle Bhawani Prasad was concerned as the sale deed was executed about 10 months back. Though, a civil litigation about mutation was pending but the title over lands had already passed on the basis of sale-deed. Further, in a back ground of enmity over litigation between parties, there was no reason for the deceased to have accompanied the accused in the night at 11.00 p.m. Learned Counsel also submitted that the deceased had developed illicit relation-ships with other ladies of the area and therefore, he was killed in that pursuit in the night as the evidence of doctor also suggests that the murder had taken place about 2 days before the date and time of post-mortem.

Learned Counsel also submitted that though the weapon of offence has been shown to be recovered pursuant to the statement given u/s 27 of the Indian Evidence Act but that recovery would not be admissible for the reason that the accused was not taken along in police custody for effecting the recovery. Learned Counsel also submitted that all the witnesses of facts are interested witnesses, in as much as the accused and complainant sides are collaterals and the eye-witnesses are the brother of deceased (P.W.1) his son (P.W.2) and uncle (P.W.3). Thus, the evidence could not have been placed reliance upon without seeking a corroboration from an independent witness. He also submitted that the accused appellants have remained in jail for about 3 years.

On the other hand, Learned Counsel for the State opposed the suspension of sentence on the ground that the trial court has discussed the motive part of the case and that was the reason for committing the offence.

On due consideration of rival submission, without expressing any opinion on merits, we allow the prayer for suspension of jail sentence and recovery of fine qua accused appellants Lallan @ Devi Prasad son of Mauji Ram and Ram Janak son of Lal Mani Mishra both residents of Poore Dhanni Mishra, P.S Itiyathok, District Gonda, and thus the jail sentence and recovery of fine qua the said accused shall remain suspended during the pendency of appeal and they shall be released on bail subject to each of them furnishing bail bonds to the satisfaction of the Sessions Judge concerned.