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Judgment
Pankaj Purohit, J
Heard Ms. Manisha Bhandari, learned counsel for the appellant and Mr. J.S. Virk, learned Deputy Advocate General for the State.
This is the second bail application. The First Bail Application was rejected on 19.10.2020.
The appellant is under incarceration while he is convicted under Sections 302, 376 IPC and Section 4 of the POCSO Act and has been sentenced for 10 years rigorous imprisonment with a fine of Rs.30,000/- in default of payment of fine, six months additional rigorous imprisonment and under Section 302 for life imprisonment with a fine of Rs.10,000/- in default of fine six months rigorous imprisonment.
The learned counsel for the appellant is pressing the Second Bail Application of the appellant. It is mainly contended by the learned counsel for the appellant that though appellant has been convicted under Section 302 of the IPC for life imprisonment for committing the murder of Amar Kumar, brother of victim and 10 years rigorous imprisonment under Section 4 of the POCSO Act, allegedly committed with victim, but so far as the POCSO is concerned, nine years have already elapsed under incarceration for said offence. It is strongly submitted by the appellant that there is no evidence at all against the appellant to nab him under the provisions of Section 302 IPC except a motive which is there on record. There is no element of legal evidence against the appellant. In this view of the matter, he is entitled to be released on bail, particularly, the fact that so far as the imprisonment of POCSO is concerned, nine years have already elapsed under incarceration.
Per contra, learned State Counsel has submitted that there is a motive as the accused-appellant convicted under Section 4 of the POCSO Act and in the same manner, he committed the offence under Section 302 of the IPC. But to a query made by us as to what other evidence with regard to the offence under Section 302 IPC is concerned, no satisfactory answer could be given by the learned counsel for the State. It is further submitted by learned State Counsel that though mobile of the deceased was recovered from the appellant but it could not have been connected with the crime. The motive of committing the crime by the appellant is that the deceased Amar, brother of the victim, had seen the appellant having a physical relationship with the victim.
Having heard the rival contention of the parties, we are of the view that only on the basis of motive without there being any positive evidence, conviction cannot be inflicted.
In this view of the matter, without expressing any opinion to the final merits of the case, we are inclined to enlarge the appellant on bail on executing his personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned.