Khilari v. State of U.P. & Ors.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a Division Bench of the Allahabad High Court allowing the prayer for bail made by respondent nos.[2] and 3 during the pendency of Criminal Appeal No.6724 of 2006. Challenge before the High Court was to the conviction recorded by learned Sessions Judge, Bagpat, in Sessions Trial No.299 of 2000. Respondent nos. 2 and 3 were convicted for offences punishable under Section 302 and Section 506 of the Indian Penal Code, 1860 (in short ‘IPC’) and each was sentenced to undergo imprisonment for life and one year for the offences respectively. The accused persons were convicted allegedly for committing murder of Shiv Kumar. Challenging the conviction appeal has been filed and simultaneously prayer for being released on bail during the pendency of the appeal was filed. By the impugned order the Division Bench accepted the prayer and granted bail to the respondent nos. 2 & 3. The High Court noted that the allegation was that the incident took place on 8.6.2000 at about 8.30 p.m. and accused persons assaulted Shiv Kumar (hereinafter referred to as the ‘deceased’) mercilessly with iron rods and he succumbed to the injuries.

3. The only stand taken before the High Court was that the ante mortem injuries on the body of the deceased included three contusions, one abraded contusion and four lacerated wounds of different dimensions on various parts of the body which could not have been caused by iron rods. It was their stand that some unknown assailants caused the injuries to the deceased. It was also submitted that by order dated 15.11.2006 the coaccused has been released on bail.

4. The prosecution and the present appellant opposed the prayer for grant of bail. It was their stand that PWs 1 and 2 and the informant had seen the attacks and were eye-witnesses to the occurrence and PW[3] is an independent witness. Their evidence has been analysed in great detail by the trial Court who found it to be credible and cogent. So far as the possibility of injuries is concerned, that aspect was also examined by the trial Court.

5. After noticing the rival stands, the High Court by the impugned order granted the bail with the following conclusions: “Considering fact and circumstances of the case but without making any opinion on the merit of the appeal at this stage, we are of the view that the accusedappellants Dharmendra and Manoj shall also be released on bail.”

6. Learned counsel for the informant appellant submitted that the approach of the High Court is clearly erroneous. After the conviction has been recorded by believing three eye witnesses and also discarding the stand that some of the injuries were not possible by iron rods, the High Court should not have by a cryptic order directed grant of bail. It was, therefore, submitted that the impugned order is unsustainable.

7. Learned counsel for the State supported the stand of the informant.

8. Learned counsel for the respondent nos.[2] and 3 accused submitted that it is common knowledge that appeals in the High Court take a long time for disposal. A balance has to be struck between the right to speedy trial and the need for the accused being in custody. The High Court has taken note of relevant factors and has granted bail.

9. The parameters to be adopted while dealing with the application for bail by suspension of sentence during the pendency of the appeal has been examined by this Court in several cases. In Kishori Lal v. Rupa and Ors. (2004 (7) SCC 638) it was noted as follow:

10. In Anwari Begum v. Sher Mohammad and Anr. (2005 (7) SCC 326) it was, inter alia, observed as follows:

1. The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence;

2. Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant;

3. Prima facie satisfaction of the court in support of the charge. Any order dehors of such reasons suffers from non-application of mind as was noted by this Court in Ram Govind Upadhyay v. Sudarshan Singh & Ors. (2002 (3) SCC 598), Puran etc. v. Rambilas and Anr. etc. (2001) (6) SCC 338) and in Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav & Anr. (JT 2004 (3) SC 442).”