SHRI PANKAJ NAQVI,J. - (1.) THIS is an application under Section 389(1) of the Code of Criminal Procedure seeking stay of the judgment of conviction dated 7.8.2012 passed by Additional Sessions Judge (Court No.2), Azamgarh in Sessions Trial No.435 of 2006.
(2.) THE prosecution alleged that a written report dated 28.2.2006 was lodged at about 6 P.M, alleging that the informant (son) was waiting for his father at Kesari Chauraha, Atraulia who was to come from Azamgarh. As the father alighted from the bus and proceeded towards his house alongwith the informant, the accused persons namely Rajesh Kumar, Pawan Kumar alias Babloo, Amit Kumar Pandey, Umesh and Ramesh alighted from a Bolero Jeep possessing arms and gheraoed his father. While Rajesh Kumar, Pawan Kumar alias Babloo and Amit Kumar fired shots from their respective weapon at the father of the informant, Laxmi Narain Pandey and Shyam Narain Pandey (present applicant) who were inside the vehicle exhorted the other accused persons not to spare the father of the informant, so much so that he should forget what "principalship" is all about. The father of the informant died at the spot. Shyam Narain Pandey, the applicant was tried alongwith other accused persons in S.T. No.435 of 2006 for charges under Section 147,148,149,302,120B, 504 and 506 IPC read with Section-7 Criminal Law Amendment Act. Similarly other accused persons too were tried in the two other connected Sessions Trial No.436 of 2006 and 437 of 2006 purporting to be under Section 3/25 of the Arms Act. The trial court vide its judgment of conviction and order of sentence dated 7.8.2012 in Sessions Trial No.435 of 2006 convicted the applicant for charges under Sections 147,148,302/144 IPC, read with Section 1208 IPC, and sentenced him alongwith others to undergo rigorous imprisonment with Rs.1,000/- fine under Section 147 IPC and in default one month additional rigorous imprisonment; two years R.I. with Rs.3,000/- as fine under Section 148 IPC and in default one year additional R.I.; six months R.I under Section-7 Criminal Law Amendment Act and life imprisonment with Rs.25,000/- fine under Sections 302/149 and 120B IPC and in default three months additional R.I. All these sentences were to run concurrently. Challenging the aforesaid judgment of conviction and sentence, the applicant Shyam Narain Pandey filed Criminal Appeal No.3239 of 2012 before this court. This court while admitting the appeal on 29.8.2012 was pleased to pass the following order: "Heard Sri Rajeev Mishra, learned counsel for the appellant as also Sri A.N.Mulla, learned AGA for the State. We have also heard Sri Viresh Mishra,learned Senior Counsel assisted by Sri Rahul Mishra, Advocate appearing on behalf of the informant. This appeal shall be heard. Call for lower court record of Sessions Trials No. 435 of 2006, 436 of 2006 and 437 of 2006 from the court of Additional Sessions Judge, Court No. 2, Azamgarh, which must be made available in a maximum period of four weeks. As regards the prayer for bail, the submission is that the present appellant Shyam Narain Pandey along with the other convict Laxmi Nagain Pandey were alleged in the FIR as also in the evidence that they were sitting in a vehicle and were remonstrating from there, the shots whereupon were fired by three others. Regard being had to the submissions, let appellant Shyam Narain Pandey be released on bail, during pendency of appeal, on furnishing a bond of Rs. 20,000/- with two sureties of the like amount each to the satisfaction of the learned Additional Sessions Judge, Court No. 2, Azamgarh in connection with the Sessions Trial No. 435 of 2006, 436 of 2006 and 437 of 2006. As regard sentence of fine imposed upon the above noted appellant, realization thereof shall remain stayed."
(3.) SUBSEQUENTLY the applicant filed a Civil Misc. Modification Application No.307101 of 2012 for seeking a modification of the aforesaid order dated 29.8.2012 passed by this court. The said application came to be dismissed on 26.4.2012 as being misconceived. Thus in these circumstances the present applicant has filed an application under Section 389(1) Cr.P.C. for seeking stay of judgment of conviction dated 7.8.2012 passed by the court below.;