Nandu Mallah and Others vs State of U.P.

M.L. Singhal, J.—The four accused-Appellants, namely, Nandu Mallah, Pancham Mallah, Ram Ashrey Pasi and Ganga Pasi have been awarded death sentence by learned Special/Additional Sessions Judge, Mirzapur, by his judgment dated 9 February 1999. They have applied for bail.

I have heard the Learned Counsel for the accused-Appellants, Shri J.S. Sengar, and the learned A.G.A. at length.

The Learned Counsel for the accused-Appellants vehemently argued that under the new Code of Criminal Procedure, the whole concept of law relating to death penalty has been changed and only in rarest of the rare cases, death penalty can be awarded by the Court. The Learned Counsel for the Appellants got me waded to the judgment of the Hon�ble Supreme Court in Bachan Singh Vs. State of Punjab, , and also relied upon the decision of this Court earlier in Smt. Usha v. State oJ�U.P.. 1994 ACC 101, where an accused woman awarded death sentence was enlarged on bail by this Court, pending confirmation of death sentence by this Court, and the judgments of the Supreme Court in Bullu Das v. State of Bihar 1999 ACC 20 and in Shaikh Ayub Vs. State of Maharashtra, . It was argued that the present case is one where death sentence could not be awarded and. as such, the accused are entitled to bail. In substance, the findings of the learned lower Court are, it is not necessary to refer to the individual acts of the four Appellants after committing the murder of one deceased Raj Kumar by �Tangari� and �Chaku�, his dead body was dragged and thrown into the river Ganges, thereafter, the neck of the other deceased Ram Narain was separated from the trunk, his both hands were also cut, the trunk of the said deceased was dragged and along with motorcycle of the deceased was sunk into the river Ganges. The learned Sessions Judge in view of the cruelty and brutality of the murder, after referring to the relevant case law, has awarded the death sentence. The Court may or may not award death sentence to the four accused-Appellants, the matter of confirmation of death sentence is pending before the Court. As regards the case of Smt. Usha v. State of U.P. , (supra), that was a case based on circumstantial evidence and the woman accused in view of the circumstances of the case, was enlarged on bail pending decision of confirmation of the death sentence.

That apart, one of the major considerations for enlarging or refusing to enlarge the accused on bail is, whether the accused would jump out the bail or re-appear before the Court to receive sentence which may be awarded to him. Whatever may the stringent conditions be imposed, where an accused is sentenced to death, he is most unlikely to return to receive the sentence awarded to him.

In view of the above, it is not a fit case for enlarging the accused-Appellants on bail. The bail application is, therefore, rejected.