UMA NATH SINGH,S.N.H.ZAIDI,J - (1.) LEARNED counsel for appellants submitted that out of four accused persons two, namely, Bindra Prasad and the present accused-appellant Moti Lal, have been attributed the use of.315 bore country-made pistols. This is also a contention of learned counsel that the role of Moti Lal is similar to that of Bindra Prasad as both of them have been alleged to be carrying.315 bore country-made pistols whereas the post mortem report suggests the use of.12 bore pistol/gun. Learned counsel referred to the order dated 07-10-2009 passed in the case of accused Bindra Prasad which is reproduced as under:- "Learned counsel for the appellant-applicant submitted that one Bindra Prasad has been attributed.315 bore fire arm injury which was not found established during the post-mortem of dead body as revealed from the post-mortem report. Learned counsel also submitted that on a careful reading of testimony of informant Ajesh Kumar Shukla, P.W.-1, it is clear that the incident took place at two stages. In the first stage, only the incident of firing was completed and it is thereafter that Bindra Prasad arrived at the scene of occurrence and fired from.315 bore country-made pistol. According to learned counsel in the post-mortem report only firing from.12 bore pistol with 120 pellets as extracted from the body has been noticed. In the balastic report also, it has been found that the cartridge of.315 bore as recovered from the spot was not fired from any of the weapons which were recovered from the accused, and further no fire arm weapon of the description as alleged was recovered from the accused-applicant. It is also a submission of learned counsel that the accused has been falsely implicated as an afterthought on the basis of bald statement and that he has remained in jail for about one year. Since, the submissions of the learned counsel for the applicant is based on well founded facts of the case, learned counsel for State has no serious ground to refute the same. In view of all the aforesaid, we allow the prayer for suspension of jail sentence and stay of recovery of fine. Thus, the jail sentence and the recovery of fine as imposed upon accused Bindra Prasad, son of Subedar Mishra, resident of Rampurkalan, Police Station Mohammdi, District Kheri shall remain suspended during the pendency of appeal, and he shall be released on bail subject to furnishing bail bonds to the satisfaction of Sessions Judge, concerned."
(2.) LEARNED State counsel took the same plea as taken in the case of Bindra Prasad. In view of all the aforesaid, we allow the prayer for suspension of jail sentence and stay of recovery of fine of the accused-appellant. Thus, the jail sentence and recovery of fine as imposed upon accused Moti Lal, son of Keshav Ram Bajpayee, resident of Raipur Kalan, Police Station Mohammadi, District Lakhimpur Kheri, shall remain suspended during the pendency of appeal, and he shall be released on bail subject to the satisfaction of learned Sessions Judge, concerned.;