KHILARI versus STATE OF U.P. AND ANR.

Citation: [2008] 4 S.C.R. 903 · Decided: 13-03-2008 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Case Allowed

Judgment (excerpt)

[2008] 4 S.C.R. 903 
KHILARI 
A 
·~ r 
V. 
STATE OF U.P. AND ANR. 
· (Criminal Appeal No. 481 of 2008) 
MARCH 13, 2008 
8 
[DR. ARIJIT PASAYAT AND P. SATHASIVAM, JJ.] 
Code of Criminal Procedure, 1973: s.389 - Suspension 
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.·of sentence pen.ding appeal - Release of person convicted in 
murder cq_se on bail by High Court by a cryptic order -
Sustaina:bility of - Held: Not sustainable - There was non- c 
application of mind and non consideration of relevant aspects, 
thus order set aside - Matter remitted to High Court for fresh 
consideration. 
It is alleged that respondent No.2 and his two sons D 
mercilessly assaulted S with iron rods and S succumbed 
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to the injuries. Respondent no.2 was convicted and 
sentenced for offences punishable under s.302 and s.506 
IPC. Respondent filed an appeal challenging the 
conviction. He also filed bail application during pendency E 
of appeal on the ground that the ante mortem injuries on 
the body of the deceased could not have been caused by 
iron-rods; and that some unknown assailants caused the 
injuries to the deceased. High Court granted bail. Hence 
the present appeal. 
F 
....., 
Appellant-informant contended that the impugned 
order was unsustainable; that the conviction was 
recorded by believing three eye witnesses; and that 
discarding the stand that the injuries were not possible 
by iron rods, the High Court should not have granted bail G 
by a cryptic order. 
Appellant no 2-accused contended that it is common 
knowledge that appeals in the High Court take long time 
903 
H 
904 
SUPREME COURT REPORTS 
[2008] 4 S.C.R. 
A for disposal; that the balance has to be struck between 
the right to speedy trial and need for accused being in 
custody; and that High Court took note of relevant factors 
and granted bail. 
Allowing the appeal and remitting the matter to High 
B Court, the Court 
HELD: The order of High Court shows that there was 
complete non-application of mind and non consideration 
of the relevant aspects. Therefore, the impugned order is 
-1 
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c not sustainable and is dismissed. The bail granted to·the 
respondent no.2 is cancelled. The matter is remitted to 
the High Court for fresh consideration in accordance with 
law. (Para 11 and 12) [908-C, D] 
Kishori Lal v Rupa and Ors 2004 (7) SCC 638; Anwari 
D Begum v Sher Mohammad (2005) 7 SCC 326 - relied on. 
CRIMINALAPPELLATE JURISDICTION : Criminal Appeal 
No. 481 of 2008 
From the final Judgment and Order dated 15.11.2006 of 
E the High Court of Judicature at Allahabad in Crl. A. No. 6724/ 
2006 
S. Chandra Shekhar and Jogendra Kumar for the 
Appellant. 
F 
Shail Kumar Dwivedi, A.AG., Vishwajit Singh, Javed 
Mahmud Rao, Kamlendra Mishra, Vandana Mishra and Vibha 
.>-
Dwivedi for the Respondents. 
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The Judgment of the Court was delivered by 
G 
DR ARIJIT PASAYAT, J. 1. leave granted .. 
H 
2. Challenge in this appeal is to the order passed by a 
Division Bench of the Allahat:>ad High Court allowing the prayer 
for bail made by respondent no.2 .during ttie pendency of 
C_(iminal.Appeal no.6724 of 2006. Challenge before the High 
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• 
• e 
KHILARI v. STATE OF U.P. AND ANR. 
905 
[DR. ARIJIT PASAYAT, J.] 
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Court was to the conviction recorded by learned Sessions A 
Judge, Bagpat, in Sessions Trial no.299 of 2000. Respondent 
no.2 was convicted for offences punishable under Section 302 
and Section 506 of the Indian Penal Code, 1860 (in short 'IPC') 
and was sentenced to undergo imprisonment for life and one 
year for the offences respectively. He and his two sons were B 
also convicted allegedly for committing murder of Shiv Kumar. 
f 
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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 c 
respondent no.2. The High Court noted that the allegation was 
that the incident took place on 9.3.2000 at about 8.30 p.m. and 
accused no.2 and his two sons assaulted Shiv Kumar 
(hereinafter referred to as the 'deceased') mercilessly with iron 
rods and he succumbed to the injuries. 
D 
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,J 
3. The only stand taken 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 
E 
assailants ca

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