Mahesh and Another vs State of U.P.

Criminal Misc. Application No. 71256 (B) of 2010

Heard learned Counsel for the appellants and the learned Additional Government Advocate on the prayer for bail in pending appeal.

This criminal appeal has been preferred by the appellants Mahesh and Hansraj against judgment and order dated 23.10.2009 passed by the Additional Sessions Judge, Court No. 10, Barabanki in Sessions Trial No. 287 of 2008 whereby the appellants have been convicted under Sections 302/34 IPC and have been sentenced for maximum term of life imprisonment with fine stipulation.

We have gone through the judgment and record of lower court, including FIR and statement of prosecution witnesses.

It comes out that body of one Sukhdeo alias Sukai was found to be hanging in a mango tree on 26.11.2007 and the same was taken down. Postmortem was conducted and FIR was lodged on 27.11.2007 by one Jagannath apprehending therein that his younger brother Sukhdeo alias Sukai has been done to death by the appellants and their associates while strangulating him and just to convert the case of murder into suicide they hang his body on the mango tree.

Argument advanced on behalf of the appellants is that in the postmortem report it has been shown that the deceased has died due to asphyxia and ante-mortem injury (hanging). There is no such evidence so as to implicate the appellants with respect to commission of the crime. The case falls within the parameters of circumstantial evidence, even such circumstance has not come in the evidence of the prosecution witnesses that the deceased has died or last seen with any of the accused persons. It is submitted that appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. It is further submitted that the appellants are in jail for a considerable long period.

In any case, at this juncture, we find that it is a case of circumstantial evidence chain of which is not so strong and complete so as to convict the appellants u/s 302/34 IPC.

In view of the aforesaid facts and circumstances of the case, without commenting any further on merit of the case, we find it a fit case for bail.

Let appellants-Mahesh and Hansraj, convicts of the aforesaid sessions trial, be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate concerned.

Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the appellants within one month from the date of their release on bail.

Chief Judicial Magistrate concerned is directed to transmit to this Court photocopies of bond and sureties filed by the appellants to be preserved in the record maintained here.