Sher Bahadur and Another vs State of U.P.

Shri Kant Tripathi, J.—Written objection filed on behalf of the State is taken on record.

Heard the learned Counsel for the Appellants and the learned A.G.A. for the Respondent and perused the judgment and order dated 06.08.2010 passed by the learned Additional Sessions Judge, Court No. 3, Shahjahanpur in S.T. No. 515 of 2009 (State v. Brajram alias Jhau and Ors.).

Learned Counsel for the Appellants submitted that the Appellant No. 1, Sher Bahadur is the father-in-law and the Appellant No. 2, Madan Pal is the elder brother-in-law (Jeth) of the deceased. The husband, whose case is distinguishable, has already been convicted and sentenced and is in jail. It was next submitted that neither P.W.�1, Bharat Singh (father of the deceased) nor P.W.-2, Smt Javitri Devi (mother of the deceased) nor any other witness supported the prosecution story during the trial and the learned trial court passed the impugned judgment and order despite the fact that the case was of evidence. The finding of strangulation is conjectural. It was next submitted that the maximum sentence imposed on each of the Appellants is of seven years and they are in jail from the last one year and had been on bail during the trial and never abused the same.

The learned AGA submitted that the deceased died in the house of the Appellants otherwise than the normal circumstances and she had sustained ante mortem injuries, therefore, in view of Section 106 of the Evidence Act the burden rests on the Appellants to show as to how the deceased sustained ante mortem injures and died, therefore, the learned Additional Sessions Judge was perfectly justified in passing the impugned judgment and order.

In rebuttal the learned Counsel for the Appellants submitted that the Appellants have merely prayed for bail and the appeal is yet to be decided, therefore, at this stage, it would not be proper to deny bail to the Appellants, specially when the parents of the deceased did not support the prosecution story. It was also submitted that in case, the Appellants are not released on bail the appeal would, in due course, become in fructuous as there is no hope of an early hearing of the appeal due to heavy dockets. More so, the Appellants had explained as to how the deceased sustained injuries and stated that she sustained injuries on falling from a tractor. The doctor had supported this version of the Appellants during the cross examination. It was further submitted that if it is held that the defence story was not established, even then, the parents of the deceased admitted in the witness box that the deceased committed suicide on account of the fact that she had no issue. At most the case was of hanging only.

In my opinion, prima facie, the aforesaid submissions of the learned Counsel for the Appellants have substance, therefore, it is just and expedient to exercise the discretion in favor of the Appellant.

Keeping in view the nature of offence, evidence, complicity of the accused, the severity of punishment and submissions of the learned Counsel for the Appellants and the learned AGA, I am of the view that the Appellants have made out a case for bail.

Let the Appellants Sher Bahadur and Madan Pal, who have been convicted and sentenced, in the aforesaid session trial be released on bail during the pendency of the appeal on their each furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

The realization of half of the fine shall remain stayed during pendency of the appeal, provided the Appellants deposit half of the fine within one month.

On acceptance of bail bonds and personal bonds, the lower court shall transmit photo state copies thereof to this Court for being kept on the record of this appeal.

Let the paper books be prepared.

List the appeal for hearing in due course.