Court No. - 46 Case :- CRIMINAL APPEAL No. - 3240 of 2009 Petitioner :- Pooran Tiwari Respondent :- State Of U.P. Petitioner Counsel :- I.K. Chaturvedi Respondent Counsel :- Govt. Advocate Hon'ble Sheo Kumar Singh,J.
Hon’ble Shyam Shankar Tiwari,J.
Heard Sri R.K.Chaturvedi, learned Advocate who appeared
to press bail application moved on behalf of Pooran Tiwari
who is appellant in Criminal Appeal No. 3240 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 witnesses so examined were declared
hostile and the only testimony remain is of P.W.3 on the
basis of which conviction is based.
Submission is that from the statement of P.W.3 itself on
perusal of examination in chief and cross examination her
presence even for the purpose of last seen can be said to be
highly doubtful and her presence is not to be accepted as
she has given contradictory version.
Submission is that if the deceased was forcibly taken by the
appellant and other co-accused from the outskirt of the
village and the lady was present her statement that he cried
for help but thereafter no effort was made and then he heard
fire sound and it is thereafter in the morning hours body was
traced, are all appears to be concoction and not
corroborated by any positive evidence.
Submission is that on the same set of evidence other co-
accused assigned similar role has been convicted.
Submission is that conviction is based on weak type of
evidence and in fact nobody saw the commission of the
offence and P.W. 1 who is said to be present on the spot on
cross examination was declared hostile.
Submission is that the appellant was on bail during trial and
he did not misuse the same and as the appeal is not so old it
will take some time in its disposal, the appellant is entitled to
be released on bail.
Learned Additional Government Advocate to oppose the
aforesaid submits that it is a case where P.W.2 saw the
appellant and other co-accused taking the deceased from
the outskirt of the village and it is thereafter incident
happened and thus if learned Trial Judge by connecting the
things believed prosecution version then it is not a fit case
for grant of bail.
There is no dispute about the fact that witnesses of fact so
examined were declared hostile and the testimony of P.W.2
is only there. On perusal of the statement of P.W.2 in the
examination in chief and cross examination there appears to
be material contradiction. Statement of fact is also not
corroborated by the postmortem examination.
In respect to the incident nobody claims to have seen actual
occurrence and on the same set of fact one of the co-
accused has been acquitted.
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 considered view that the appellant is entitled to be
enlarged on bail.
Accordingly, let the appellant Pooran Tiwari involved in
S.T.No. 276 of 2007, 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 to the extent
of fifty percent shall remain stayed. Balance amount of fine
shall be deposited forthwith. The release order shall be sent
after deposit of fine.
Order Date :- 4.2.2010
M.A.A.