LexKHILARI versus STATE OF U.P. & ORS.
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[200] 1 S.C.R. 543 KHILARI A v. STATE OF U.P. & ORS. (Criminal Appeal No. 141 of 2009) JANUARY 23, 2009 B [DR. ARIJIT PASAYAT AND ASOK KUMAR I ·GANGUL Y, JJ.] -J,, Code of Criminal Procedure, 1973: c s. 389 - Suspension of sentence pending appeal - Re/ease of appellant on bail - On facts, conviction of appellant uls. 302 and 506 /PC - Bail application during pendency of appeal - Case of accused that injuries could not have been caused with iron rods as alleged and some D -t- unknown assailants were involved - Prosecution case that evidence of eye witnesses and independent witnesses found to be credible and cogent and trial court examined the aspect relating to injuries - Grant of bail by High Court - Sustainability of - Held: Not sustainable - Order shows. E complete non-application of mind and non-consideration of relevant aspects - Bail granted to co-accused also set aside - Thus, grant of bail cancelled - Matter remitted to High Court for afresh consideration. 'r s. 389 - Suspension of sentence pending appeal - F Application for bail - Parameters to be adopted - Reiterated. Kishori Lal v. Rupa and Ors. 2004 (7) SCC 638; Anwari Begum v. Sher Mohammad and Anr. 2005 (7) SCC 326 and Pancham Chand and Ors. v. State of Himachal Pradesh and G Ors. 2008 (3) SCALE 379, relied on. -,... Case Law Reference: 2004 (7) sec 638 Relied on. Para 9 543 H A B c D 544 SUPREME COURT REPORTS 2oos (7) sec 326 Relied on. 2008 (3) SCALE 379 Relied on. [2009) 1 S.C.R. Para 10 Para 11 CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 141 of 2009. From the Judgment and Order dated 3/12/2007 of the High Court of Judicature at Allahabad in Crl. Appeal No. 7567 of 2006. S. Chandra Shekhar, for the Appellant. Shobha Dixit, T.N. Singh, Rajeev Dubey and Kamlendra Mishra, for the Respondent. The Judgment of the Court was delivered by DR. ARIJIT PASAYAT, J.1. Leave granted. 2. Ch~llenge 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 E 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 F (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 G 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 H (hereinafter referred to as the 'deceased') mercilessly with iron KHILARI v. STATE OF U.P. & ORS. 545 [DR. ARIJIT PASAYAT, J.] rods and he succumbed to the injuries . A ...... 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 B " 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 co-accused has been released on bail. 4. The prosecution and the present appellant opposed the c 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 PW3 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 D 'f 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: E "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 accused-appellants Dharmendra and Manoj shall
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