Allahabad High Court
Ashiq vs State Of U.P. on 19 November, 2016
Bench: Vikram Nath, Sheo Kumar Singh-I
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 37
Case :- CRIMINAL APPEAL No. - 2872 of 2015
Appellant :- Ashiq
Respondent :- State Of U.P.
Counsel for Appellant :- R.K. Kaushik
Counsel for Respondent :- Govt.Advocate
Connected with
Case :- CRIMINAL APPEAL No. - 3378 of 2015
Appellant :- Afroz And 3 Others
Respondent :- State Of U.P.
Counsel for Appellant :- Samit Gopal
Counsel for Respondent :- Govt.Advocate
Hon?ble Vikram Nath, J.
Hon?ble Sheo Kumar Singh ? I, J.
1. Criminal Misc. Bail Application No. 234918 of 2015, on behalf of Ashiq.
And.
2. Criminal Misc. Bail Application No. 277850 of 2015, on behalf of Sabir.
.
Sri Vikas Sahai, learned A.G.A for the State has filed counter affidavit today, which is taken on record.
Heard Sri Gopal Chaturvedi, learned Senior Advocate, assisted by Sri Samit Gopal, learned counsel for the appellants ? Afroz, Shamim @ Pahalwan, Shakeer and Sabir in Criminal Appeal No. 3378 of 2015, Sri Brijesh Sahai, Advocate appearing for the appellant ? Ashiq, in Criminal Appeal No. 2872 of 2015, learned A.G.A for the State and perused the material placed before us on the question of consideration of grant of bail to the appellants.
Learned Senior Advocate Sri Chaturvedi has submitted that appellant ? Sabir was neither named in the First Information Report, nor the two eye-witnesses namely P.W. 1 - Bafaati and P.W. 2 - Shahid in their testimony stated about his presence at the time and place of the occurrence and any involvement in the crime. According to Sri Chaturvedi, learned Senior Advocate, the accused ? Sabir has been convicted on the basis of mere conjuncture merely because the Investigating Officer has submitted charge-sheet against him. It is next submitted that according to the prosecution case and the evidence led during the prosecution, the deceased received three gun-shot entry wound, four lacerated wounds and three incised wounds, however the description of the incident does not explain the lacerated wound as the first information report and the testimony of the witnesses, only refers to gun-shot wound and stabbing by knife, which would cause incised wounds. In so far as the appellant ? Aashiq is concerned. Sri Sahai, learned counsel submitted that Ashiq was although named in the first information report, but the Investigating Officer did not submit charge-sheet against him. He was summoned under Section 319 Cr.P.C. He has also submitted that role of involvement assigned to Ashiq in the first information report and in the testimony before the trial is that of exhortation and that of hitting the informant with his gun. It is also submitted that no evidence has been placed on record with regard to any injury received by the informant. He thus submitted that appellant ? Ashiq has been falsely implicated and there was no evidence even during the trial to record his conviction. Learned counsel for the appellants submitted that all except the appellants were on bail during the trial.
Learned A.G.A on the other hand submitted that the four appellants in Criminal Appeal No. 3378 of 2015 have long criminal antecedent as pointed out in the counter affidavit filed by the State. A perusal of the list of cases shown, against the four appellants of Criminal Appeal No. 3378 of 2015 indicates that the cases are of the period subsequent to the crime in question and of the time after the appellants were released on bail. They have misused the liberty granted to them. All the cases are of not minor offences but of heinous offences. It is also submitted by learned A.G.A that the appellant ? Afroz is said to have caused the gun-shot wound in the head, which was brain-deep. The gun-shots wound caused by Shamim were on shoulder. Three knife injuries said to be caused by Shakir, two are on the head and one on the back scapula. It was also submitted that in view of the above facts and situation, the appellants are not entitled to be released on bail.
Having considered the submissions, we are of the view that as there is no evidence against the appellant ? Sabir in the present case, although he has criminal antecedent, but still he would be entitled to bail as his conviction is based apparently on mere conjunctures. In so far as the appellant ? Ashiq is concerned, against him there are no criminal antecedents except one being Case Crime no. 420 of 2015, under Section 4/25 of Arms Act and there being no active involvement in the commission of the present crime of having caused any grievous / fatal injuries to the deceased, he would also be entitled to bail.
With regard to rest of the three appellants ? Afroz, Shamim @ Pahalwan and Shakir, considering the active participation in the crime and considering the criminal antecedents as discussed above, we are not inclined to grant bail.
The prayer for bail of three appellants Afroz, Shamim @ Pahalwan and Shakir is refused, whereas the prayer for bail of appellants - Ashiq and Sabir is allowed.
Let the appellants ? Ashiq and Sabir convicted and sentenced in Session Trial No. 273 of 2005, - (State of U.P. Vs. Afroz and others), Case Crime No. 457 of 2005, connected with Session Trial No. 274 of 2005, - (State of U.P. Vs. Shamim alias Pahalwan, Case Crime No. 464 of 2005, Sessions Trial No. 275 of 2005, ? (State of U.P. Vs. Shakir), Case Crime No. 465 of 2005, Sessions Trial No. 396 of 2005, - (State of U.P. Vs. Afroz), Case Crime No. 463 of 2005 and Sessions Trial No. 106 of 2007, - (State of U.P. Vs. Sabir), Case Crime No. 505 of 2005 under Section 302/149 I.P.C and Section 25/27 of Arms Act and 4/25/27 of Arms Act, Police Station - Mauranipur, District - Jhansi, be released on bail on each of them submitting personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.
On acceptance of bail bonds and personal bonds, the lower Court shall transmit photostat copies thereof to this Court for being kept on the record of these appeals.
Order Date :- 19.11.2016
Vinod.
