AMAR SARAN, S.K.JAIN, JJ. - (1.) THIS prayer for bail has been preferred in Crl. Appeal No. 148 of 2004 against the judgment dated 5.1.2004 passed by the Addl. Sessions Judge, Court No. 4, District Mathura, in ST No. 106 of 1995, convicting and sentencing the appellants to impris ­onment for life and a fine of Rs. 10,000/ -each under sections 302/34 IPC.
(2.) HEARD Sri Brijesh Sahai, learned Counsel for the appellants and the learned AGA. It may be noted that earlier a bail in this case had been granted by Hon. C.P. Misra, J. by order dated 13.1.2004 princi ­pally on the ground that the appellants were on bail during the trial and had not misused their liberty. However, the Apex"Court set aside the said order in Cri. Ap ­peal No. 1067 of 2004, arising out of SLP (Cri.) No. 2223 of 2004, by order dated 23.9.2004, observing that the order granting bail was not in accordance with law as the requirement of section 389 Cr.P.C. for re ­cording reasons in writing for ordering suspension of execution of sentence or the order appealed against and, thereafter, re ­leasing the appellants on bail, were not stated; that the mere absence of allegation of misuse of liberty during the earlier pe ­riod when the accused persorjs were on bail was held not to be a good ground for enlarging the appellants on bail after their convictions. The apex Court further ob ­served that the High Court had not consid ­ered the relevant facts like the nature of accusation made against the accused, the manner in which the crime was alleged to have been committed, the gravity of the -offence and the desirability of the accused being released on bail after they had been convicted for committing the serious crime of murder. These aspects were not consid ­ered while passing the impugned order. The accused -respondents before the Su ­preme Court were allowed to move a fresh bail before the High Court which was to decide the matter in accordance with law and in its proper perspective. It is in pursu ­ance of the said order that the accused were taken into custody and fresh prayer for bail has been made.
(3.) THE prosecution case was that on 25.10.1994 at about 4 p.m. a report was orally lodged by Kishori Lal at PS Kotwali, Mathura, alleging that he was - involved in some land dispute with his co -villager, Rupa. For the purpose of attending the Court on the date fixed, his brother Suna -hari Lal, Ganga Prasad and Moti Ram hac gone to Mathura. After the date in Court the four were proceeding on a three -wheeler towards the bus stand. The three -wheeler was being followed by a motorcy ­cle by three persons - Rupa, Ghanshyam and Jaipal - who were riding on a motorcy ­cle. The informant had to visit his sister in Hathras and his brother and brother -in -law were going along with him to drop him at the Cantt. Railway Station. When the three -wheeler reached the godown the appellants arrived there on the motorcycle and they cried out that Sunahari was doing exces ­sive 'pairvi' in the case and he should be done away with. Then Rupa and Ghanshyam caught hold of Sunahari (the brother of the informant) and fired on his head. Then all the three fled on the motor ­cycle which was driven by Jaipal.;