Court No. - 45
Case :- CRIMINAL APPEAL No. - 7037 of 2019 Appellant :- Nepal Singh And Anr.
Respondent :- State of U.P.
Counsel for Appellant :- Vivek Kumar Singh,Ajay Singh Yadav,Mayank Yadav,Rajiv Lochan Shukla Counsel for Respondent :- G.A.,Satish Kumar Tyagi
Hon'ble Pritinker Diwaker,J.
Hon'ble Mrs. Manju Rani Chauhan,J. Order on the Bail Application:
Shri Rajiv Lochan Shukla and Sri Ajay Singh Yadav, learned counsel for the appellants, Shri Amit Sinha, learned AGA for the State and Shri Satish Kumar Tyagi, learned counsel for the first informant.
Present appeal arises out of the impugned judgment and order dated 02.11.2019, passed by Special Judge (SC/ST Act)/Additional District & Sessions Judge, Ghaziabad in Sessions Trial No. 196 of 2016 (State Vs. Narender and others), arising out of Crime No. 1257 of 2015 under Sections 498- A/34, 304-B/34 and 302/34 of IPC and Section 3 & 4 of Dowry Prohibition Act, P.S.-Kavi Nagar, District Ghaziabad convicting and sentencing the appellants to undergo life imprisonment for the offence under Section 302/34 IPC with a fine of Rs.1,00,000/- each, in default thereof, six months further imprisonment; three years imprisonment for the offence under Section 498-A/34 IPC with a fine of Rs.10,000/- each, in default thereof, one month further imprisonment; and two years imprisonment for the offence under Section 4 of Dowry Prohibition Act, 1961 with a fine of Rs. 10,000/- each, in default thereof, one month further imprisonment.
In this application, the appellants seek suspension of sentence and grant of bail.
Learned counsel for the appellants submits:
(i). that there is no eye witness account to the incident and the appellants have been convicted solely on the basis of circumstantial evidence of joint living, which is of weak in nature.
(ii). that appellant No. 1 Nepal Singh and appellant No.2 Jitendra Yadav are father-in-law and brother-in-law (jeth) respectively of the deceased.
(iii). that both these appellants were residing separately and evidence to this effect has been adduced by (D.W.-1) Ram Naresh and (D.W.-2) Tej Pal.
(iv). that Archana died because of strangulation and her hyoid bone was also found fractured but if at all her death was on account of strangulation that could be because of her husband Narendra, who is not before this Court.
(v). that there are allegations of demand of dowry against the appellants, but these allegations are frivolous and most importantly though the appellants have not been sentenced under Section 304-B IPC, but an erroneous finding has been recorded by the court below that 304-B is a lesser offence of 302 IPC.
(vi). that there is no sufficient evidence available on record showing the involvement of the appellants in murdering of the deceased, though it has been proved by the appellants that they were living separately, but unfortunately trial court has given erroneous finding.
(vii). that the appellants are in jail since 31.10.2019, they were on bail during trial and the appeal is likely to take sometime for its disposal.
Per contra, learned AGA and learned counsel for the first informant have seriously opposed the bail. They submit that the defence of separate living by the appellants has been disbelieved by the trial court and the appellants have failed to discharge their burden as per Section 106 of the Evidence Act.
We have heard the parties at length.
Considering the totality of the case, in particular, circumstantial evidence available on record, the fact that the appellants were on bail during trial and are in jail since last two years, and the fact that the appeal may take sometime for its final disposal, without further commenting on the merits of the case, we are inclined to release the appellants on bail.
Let appellants - Nepal Singh and Jitendra Yadav, convicted and sentenced in the aforementioned Sessions Trial, be released on bail on each furnishing a personal bond in the sum of Rs.50,000/- (Fifty Thousand) and two sureties each in the like amount to the satisfaction of the court concerned.
On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record.
The bail application is disposed of.
List the appeal for final hearing in its due course.
The party shall file a computer generated copy of this order downloaded from the official website of High Court Allahabad, self attested by the representative(s)/counsel of the appellants alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 24.8.2021 nethra/priya