Court No.5
Criminal Appeal No. 3071 of 2009
Shamshair .......Appellant
Vs.
State of U.P. .......Opp. Party
Hon'ble Vedpal,J.
Heard learned counsel for the appellant as well as learned
A.G.A. on the prayer for bail pending appeal and also perused the record
of the case.
In S.T.No.330 of 2009 (case crime no.1000 of 2008), appellant
Shamshari has been convicted for the offence punishable under Sections
376/511 I.P.C. and sentenced to undergo five years’ rigorous
imprisonment alongwith a fine of Rs.1000/- and in default of payment of
fine to further undergo six months’ imprisonment.
It has been contended by the learned counsel for the appellant
that the evidence adduced by the prosecution in support of his case is not
reliable one and the offence for which the appellant has been convicted is
not made out against the accused beyond reasonable doubt. That the
appellant has been falsely involved in the case and the learned trial court
has not properly appreciated the evidence available on record. It has
further been contended that only allegation against the appellant is that
he attempted to commit rape and , in fact, offence of rape was not
committed and punishment awarded is five years of rigorous
imprisonment and the probability factors eco against the prosecution
version and that appellant was on bail during trial and the appellant has
every hope of success in appeal.
Bail has been opposed by learned A.G.A.
I have considered the respective submissions made by the
parties and perused the impugned judgment and order passed by the trial
court. The maximum sentence of imprisonment awarded to the appellant
is only five years. Hon’ble the Supreme Court in the case of Bhagwan
Rama Shinde Gosai Vs. State of Gujrat( 1999) 4 SCC 421 has held that
when a person is convicted and sentences to a fixed term of
imprisonment. Normal rule is that when his appeal is pending, sentence
should be suspended by enlarging appellant on bail and rejection can
only be by way of exception. Having regard to the above, keeping in
view the arguments put forward by the learned counsel for the appellant
and the probability factors of the evidence on record, I am of the view
that it is a fit case for bail and suspension of sentence of imprisonment.
Let appellant be released on bail on furnishing a personal bond with two
reliable sureties each in the like amount to the satisfaction of the C.J.M.
concerned on deposit of amount of fine imposed on him by the trial court.
The operation of sentence of imprisonment awarded to the
appellant shall remain suspended during the pendency of appeal.
3.2.2010/Tripathi