- (1.) HEARD Learned Counsel for appellants and learned State Counsel and perused the records.
(2.) LEARNED Counsel for accused appellants Bihari and Girdhari submitted that the case of these appellants is squarely covered by the order passed by this Court on 21.12.2009 while granting suspension of sentence to co -accused appellant Pappu alias Sunil, and Babaji alias Gyanendra and another, in two connected appeals. The order dated 21.12.2009, on reproduction, reads as under: This order shall dispose of the prayer for grant of suspension in connected Criminal Appeal No. 1314 of 2008, as both the appeals arise out of common judgment passed by learned Sessions Judge, Unnao, in Session Trial No. 395 of 2006. Heard Learned Counsel for the parties and perused the record. Shri Virendra Bhatia, learned Senior Advocate assisted by Shri Vivek Shrotia for appellant Pappu alias Sunil and Smt. Nalini Jain, for the rest appellants submitted that the prosecution story suffers from inherent contradictions and defects inasmuch as the medical evidence does not support the incident and further that looking to the circumstances attending the commission of offence, it would not have been probable that the complainant PW -1 or her nephew PW -2 would have been present at 7.45 hours in the evening to witness the incident. Learned Counsel further submitted that even the motive appears to be opaque as it has come in the testimony of PW -1 that the pant of the deceased was also taken away by the accused persons. Besides, the fact that on the polythene mat, toffee, biscuits and contraceptive were found lying in the sugarcane field also supports his contention. He further submitted that there is only general allegation against the accused -appellants and no specific role has been assigned to the appellants as to which of the accused had caused fatal injury. Shri Bhatia submitted that the prosecution case is based on a week type of evidence and the accused -appellants have remained in jail for over four years. Besides, one of the accused -appellants Rajesh Kahar was granted suspension of jail sentence by a co -ordinate Bench, way back on 27.8.2008 only on the ground that his name was not mentioned in the F.I.R., although his other role being the similar. Learned State Counsel, however, supported the impugned judgment, but there was no specific submission so as to contradict the contentions of learned counsels for the appellants. In view of all the aforesaid, we accept the prayer for grant of suspension of jail sentence as well as stay of recovery of fine qua accused appellants Pappu alias Sunil, Babaji alias Gyanendra and Kalloo alias Nagendra, sons of Puti Gaur, residents of village Devgaon, Police Station -Safipur, district Unnao. It is, thus, directed that the jail sentence as well as recovery of fine qua appellants Pappu alias Sunil, Babaji alias Gyanendra and Kalloo alias Nagendra, shall remain suspended during the pendency of appeal and they shall be released on bail on each of them furnishing bail bonds to the satisfaction of learned Sessions Judge, Unnao.
(3.) AS there are general allegations levelled also against the appellants herein like those who have been granted bail, without expressing any opinion on the merits we accept the prayer for suspension of jail sentence and stay of recovery of fine qua the accused -appellants Bihari, son of Kand and Girdhari son of Kand Gaur, both residents of village Nihalpur, Police Station -Safipur, district Unnao. It is thus directed that during the pendency of this appeal, the jail sentence as well as recovery of fine of the aforesaid accused -appellants shall remain suspended and they shall be released on bail on the same terms as aforesaid in the order dated 21.12.2009.;