Allahabad High Court, The Division Bench of Justice Rajiv Gupta and Justice Surendra Singh-I passed this order while hearing a Criminal Appeal filed by Irfan Solanki and Another.
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| SP MLA Irfan Solanki |
Having considered the rival submissions made by the counsel for the parties as noted above and taking into consideration the fact that the prosecution in the instant case has miserably failed to prove the fact as to who, how and when had allegedly lit the house of the victim, which circumstance makes the prosecution story highly doubtful. Even when we go through the evidence of several witnesses recorded during the course of trial, we find that there are serious embellishments and material omissions in their testimony, which goes to the root of the case and makes the prosecution story further doubtful. Even the trial court has recorded a finding that there is no eye-witness account of the incident of lighting of fire by the accused-appellants and the case is based on circumstantial evidence.
“Let the appellants Irfan Solanki and Rizwan Solanki be released on bail in the aforementioned case crime number on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned subject to deposition of 50% amount of fine, if not already deposited,” the Court ordered.
He has further submitted that the trial court without appreciating the evidence and material on record in right perspective has recorded the finding of conviction and sentence against the appellants, which is wholly illegal and liable to be set aside. Counsel for the appellants has also submitted that the prosecution has miserably failed to prove the case beyond reasonable doubt against the appellants and only on the basis of surmises and conjectures, they have been convicted. Counsel for the appellants has next submitted that the prosecution has miserably failed to prove the fact that who, when and how, lit the fire to the hutment belonging to the first informant. He has further submitted that even according to the prosecution own case, there is no evidence to show that any of the witnesses, examined during the course of trial, had seen the appellants, setting on fire, the hutment belonging to the first informant and thus, the case is based on circumstantial evidence. Counsel for the appellants has next submitted that the factum of first informant and his family living in the hutment is highly disputed as from the evidence led during the course of trial, it is evident that there is no electricity connection in the hutment in which the first informant and his family is alleged to reside. Even according to the prosecution’s own case, the said hutment was in a dilapidated condition while the first informant was having a big ancestral house in Asharfabad to live in. Counsel for the appellants said that when we go through the evidence of the witnesses in the case, we find that their testimony before the trial court is in complete variance to their previous statement recorded under Section 161 CrPC, which are in the form of material omissions, which goes to the root of the case and makes the prosecution story highly doubtful and not worth credence. He has further said that even according to the prosecution own case, the two appellants are residents of the same vicinity and seeing the fire lit at the place of incident, it was quite natural for them to be present at the place along with 40-50 other persons, however, they have been falsely implicated in the case without their being any cogent or credible evidence that they were responsible for lighting the fire, which makes the prosecution story doubtful. Per contra, AAG could not dispute the aforesaid facts, however, has submitted that from the evidence recorded during the course of trial, the presence of accused appellants at the place of incident has been cogently established.
Going through the evidence led by the prosecution, we find that the link of circumstance led by the prosecution is inconclusive and cannot give rise to the definite inference of the guilt of the appellants. Admittedly, the appellants are the residents of the vicinity where the incident is said to have taken place and merely because the appellants, along with other 50- 60 persons were present at the scene of incident, will not conclusively prove the circumstance that they were responsible for lighting the fire. Moreover, the maximum sentences awarded to the appellants is seven years and they have already undergone about two years of incarceration.
“In the case, the sentence is only for a period of seven years and the appellants have already undergone about two years of incarceration and in the backdrop of the circumstances enumerated in the preceding paragraphs, we are of the opinion that the appellants have made out a case for bail”, the Court further observed while allowing the prayer for suspension of sentence.
