Court No. - 4
Case :- CRIMINAL APPEAL No. - 2095 of 2018 Appellant :- Kalwa And 3 Others Respondent :- State Of U.P.
Counsel for Appellant :- Prakash Chandra Srivastava Counsel for Respondent :- G.A.
Hon'ble Bala Krishna Narayana,J. Hon'ble Arvind Kumar Mishra-I,J.
Heard learned counsel for the applicant-appellants, learned A.G.A. for the State and perused the judgement and order dated 22.3.2018 passed by learned Additional District and Sessions Judge, Court No. 5, Moradabad in S.T. No. 968 of 2010 (State Vs. Kalwa) and S.T. No. 576 of 2011 (State Vs. Islam and others) arising out of Case Crime No. 99 of 2010, under Sections 302 and 201 of the I.P.C. Police Station - Katghar, District - Moradabad, by which the appellants have been convicted and sentenced to life imprisonment and a fine of Rs. 10,000/- in under Section 302 of I.P.C. and in default of payment of fine, six months' additional imprisonment had to be undergone. The appellants have also been convicted for three years' rigorous imprisonment and fine of Rs.2,000/- under Section 201 of the I.P.C. and in default of payment of fine, fifteen days' additional imprisonment had to be undergone.
Both the sentences were directed to run concurrently.
It is submitted by learned counsel for the applicant-appellants that in the instant case, on 05.02.2010, an F.I.R. was lodged by one Kallu - village chowkidar at Police Station - Katghar, District - Moradabad stating therein that the dead body of an unknown boy, aged between 5-6 years, was lying in the wheat field of Mohd. Iliyas near Bhojpur Kashipur road. On the basis of the aforesaid written report Crime No.99 of 2010 under Section 302, 201 I.P.C. was registered against unknown persons. The inquest and post-mortem of the deceased were conducted as that of an unknown person. Later on, the deceased was identified by P.W.3 - Sharif, father of the deceased from his photograph. The appellants - Kalwa, Islam, Furkan and Maruddin were made accused in the present case on the basis of the information tendered to the witnesses by one Saddam s/o P.W.2 Bhure that deceased was kidnapped by the applicant- appellants but during the trial, Saddam was never produced as a witness. He next submitted that only on the basis of the hearsay evidence of P.W.2, P.W.3 and P.W.4, the applicant-appellants have been convicted in the present case, which is not sustainable in the eyes of law. In view of the above, the recorded conviction of the applicant-appellants cannot be upheld. He next submitted that during the trial, all the appellants were on bail and they had not misused the liberty of bail and hence, they are entitled to be released on bail during the pendency of this appeal.
Per contra, learned A.G.A. has vehemently opposed the prayer for bail.
After considering the submissions advanced by learned counsel for the applicant-appellants and without expressing any opinion on the merits of the case, this Court is of the view that the applicant-appellants are entitled to be enlarged on bail during the pendency of this appeal.
Let the applicants-appellants Kalwa, Islam, Furkan and Maruddin be released on bail in the aforesaid case on their executing a personal bond and furnishing two sureties in the like amount to the satisfaction of the Court concerned.
It is further directed that recovery of 50% of fine from the appellants shall remain stayed.
On acceptance of bail bonds and personal bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.
Let the paper book be prepared.
List this appeal for hearing in due course.
Order Date :- 31.8.2018 S Rawat