Court No. - 46 Case :- CRIMINAL APPEAL No. - 2973 of 2009 Petitioner :- Bittoo Respondent :- State Of U.P. Petitioner Counsel :- V.S. Choudhary,Anil Raghav,Devendra Singh Respondent Counsel :- Govt. Advocate Hon'ble Sheo Kumar Singh,J.
Hon’ble Shyam Shankar Tiwari,J.
Heard Sri S.P.S. Raghav, learned Senior Advocate assisted
by Sri Anil Raghav, learned Advocate who appeared to
press bail application moved on behalf of Bittoo who is
appellant in Criminal Appeal No. 2973 of 2009, and learned
Additional Government Advocate for the State.
Applicant above named was prosecuted for the offence
punishable under Sections so mentioned in the judgment
and he is to serve out the sentence so provided.
Submission is that it is a case where three witnesses who
are said to have witnessed the incident having been
examined were declared hostile and witnesses who turned
hostile includes the brother of the deceased also who stated
that P.W.3 on whose testimony conviction is there was with
him at Delhi in the day hours in connection with the business
transaction and thus submission is that on the facts and
totality of the circumstances the testimony of P.W.3 on the
basis of which conviction is based is found to be shaky and
thus conviction may not be sustained.
Submission is that Raj Kumar although was not named in
the F.I.R. and was subsequently tried for the role of catching
hold was finally acquitted and thus on these facts, beside the
fact that even if the role of catching hold to only one person
is accepted, causing of the injury by the appellant may not
be found to be feel good.
Submission is that it is a case where offence was committed
by some unknown person as deceased was accused in a
murder case of the son of police inspector and as the
offence is there, appellant for various reasons which has
come in the evidence has been named.
Submission is that the appellant was on bail during trial and
he did not misuse the same and thus the appellant is entitled
to be released on bail during pendency of the appeal.
Learned Additional Government Advocate to oppose the
aforesaid submits that although three witnesses including
the brother of the deceased were declared hostile but the
conviction is based on solitary testimony of P,.W.3.
Argument is that if learned Trial Judge believed the
prosecution version and convicted the appellant then he is
not entitled to be released on bail.
There is no dispute about the fact that accused who was
tried for the role of catching hold has been acquitted. There
is further no dispute that three witness including the brother
of the deceased were declared hostile and from their
statement doubt sought to be created on the presence of the
witness whose testimony has been believed.
At this stage decision of the Apex Court given in case of
Jarnail Singh Vs. State of Punjab reported in 2009(64) ACC
989 on which reliance has been placed by the learned
counsel for the appellant is also to be taken note.
Appellant was on bail during trial and he claims to have not
misused the same and the appeal is not so old and thus it
will take long time in its disposal, thus the appellant is
entitled to be enlarged on bail.
On the facts, and totality of the circumstances this court is of
the view that the appellant is entitled to be enlarged on bail.
Accordingly, let the appellant Bittoo s/o Kiran Pal involved in
S.T.No. 281 of 2006, be enlarged on bail on his furnishing a
personal bond and two sureties each in the like amount to
the satisfaction of the Court concerned.
Realization of fine in respect to above appellant is not stayed
and thus release order shall be sent after deposit of fine.
Order Date :- 4.2.2010
M.A.A.