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Udai Pal And Others v. State Of U.P. - CRIMINAL APPEAL No. 556 of 2007 [2007] RD-AH 5421 (26 March 2007)


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Hon'ble R.C. Deepak,J.

Hon'ble K.N. Ojha,J.

Heard Sri V.K. Jaiswal, learned counsel for the appellant-accused Mahendra Tyagi, learned A.G.A. for the State and perused the record.

The instant application has been moved to stay the operation of order of conviction dated 31.1.2005 passed by the learned Sessions Judge, Ghaziabad in S.T. No. 455 of 1998 whereby appellant Mahendra Tyagi has been convicted under section 302 IPC and has been awarded life imprisonment and fine has also been imposed upon him.

It has been submitted by the learned counsel for the appellant and affidavit has also been filed in support of his contention that the appellant Mahendra Tyagi has been enlarged on bail by this court, he wants to contest the election of M.L.A. from Moradnagar, District Ghaziabad and therefore, prayer is being made for suspending the operation of order of conviction passed against him.

In the instant case the occurrence is said to have taken place on 10.10.1997 at about 6.00 p.m.  The FIR was lodged the same day naming the appellant as accused therein at 10.00 p.m.  The distance of police station being 4 km.  According to the prosecution due to dispute of the property when the victim was passing through the door of the appellant he along with another accused fired on the victim resulting into his death.  The witnesses were named in the FIR and out of these witnesses P.W. 1 Ugrasen and P.W. 2 Smt. Draupadi were examined by the prosecution.  The doctor proved the postmortem examination report.  The gun shot injury was also found on the body of the deceased containing blackening and tattooing and after appreciating the evidence the order of conviction was passed.

In Naujot Singh Siddhu versus State of Punjab and another reported in 2007 AIR SCW 787, it has been laid down by the Hon'ble Apex Court that appellate court has power to stay the operation of the order of conviction but this power is to be exercised in rare cases considering the facts and circumstances of the case.  If an offence has been committed all of sudden there was no previous planning for commission of offence or the conduct of the accused is such that he should not be deprived of the right of ordinary citizen.  The operation of order should be stayed.  From the perusal of the cited case it is clear that if there is any active involvement of the accused is in the crime it would not be proper to stay the operation of order of conviction.

We have gone through the judgment and order of the trial court and the other relevant records.

Considering the facts and circumstances of the present case we do not find any special reason to stay the operation of order of conviction as to stay the order of conviction is an exception occurring from the facts and circumstances of each and every case and is not a rule as has been observed by the Hon'ble Apex Court in the case already referred to above.

Consequently, the prayer of Mahendra Tyagi for staying the operation of order of conviction dated 31.1.2005 is rejected.




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