Allahabad High Court
Shakeel Alias Bittoo And 3 Others vs State Of U.P. on 4 May, 2018
Bench: Shashi Kant Gupta, Bachchoo Lal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 32
Case :- CRIMINAL APPEAL No. - 211 of 2015
Appellant :- Shakeel Alias Bittoo And 3 Others
Respondent :- State Of U.P.
Counsel for Appellant :- Lav Srivastava,Anshul Tiwari
Counsel for Respondent :- Govt.Advocate,M.N.Siddiqui,Raghuraj Kishore
Hon'ble Shashi Kant Gupta,J.
Hon'ble Bachchoo Lal,J.
Ref :- Cr. Misc. Bail Application No. 12931 of 2015.
Supplementary affidavit filed today on behalf of appellants is taken on record.
Heard Sri V.P. Srivastava, assisted by Sri Anshul Tiwari and Sri Rajarshi Gupta, learned counsel for the appellants, Sri Raghuraj Kishor, learned counsel for the complainant and Sri Rajiv Sharma, learned AGA for the State and perused the record.
This bail application has been filed on behalf of appellants who have been convicted in S.T. No. 94 of 2012, S.T. No. 95 of 2012, S.T. No. 96 of 2012, S.T. No.97 of 2012 and S.T. No. 98 of 2012, under sections 302/149, 307/34 I.P.C. and 25 Arms Act, police station Devband, District Saharanpur and sentenced them to undergo for life imprisonment with fine.
Learned counsel for the appellants submits that the appellants are innocent and have been falsely implicated in the present case. It has further been submitted that the postmortem report does not support the prosecution version inasmuch as there is only one fire arm injury apart from 7 injuries which has yet been not explained. Learned counsel for the appellants further submits that in the first information report the main role has been assigned to appellant no. 1, Shakeel alias Bittoo causing fire arm injury on the deceased and no specific role has been assigned to rest of the accused. It has further been submitted that except the appellants, seven other accused have been acquitted by the trial court. It has been further submitted that in the F.I.R. except the appellant no. 1, no other co-accused have been assigned role of carrying any weapons but postmortem report shows that apart from fire arm injury, the deceased suffered 7 more injuries, it appears that the same have been caused by hard blunt object. It has further been submitted that appellants Nadeem and Nafis have not been assigned the role of firing in the F.I.R. but only role of carrying country made Tamancha has been assigned to them. Post mortem report shows that the deceased apart from other injuries received only one gun shot entry wound with correspondent exit wound. There is material contradiction in the statement of informant and the evidences collected during investigation. No witness has been named in the F.I.R., however, the case was developed by the prosecution later on naming the so called eye witnesses. For the first time before the court they developed the story that other co- accused were also carrying hard blunt objects i.e. sariya, iron rod and lathi in their hands. Learned counsel for the appellants further submits that except the deceased, no one so called eye witnesses received any injury. It has further been submitted that there are criminal history of the appellant Shakeel alias Bittoo of 8 cases and out of them in 3 cases he has been acquitted and in three cases he is not wanted. Criminal history of the appellant no. 1, in detail, has been explained in paragraph nos. 3 to 9 of the supplementary affidavit filed today in the court. It has further been submitted that bare perusal of the F.I.R., it is evident that the same was lodged by some other person and not by the informant himself wherein a reference was made that during firing Wasim (informant) escaped away from the scene and saved his life. It has further been submitted that the first information report was lodged by Wasim but Wasim referred himself as a third person and mentioned in the F.I.R. that "Wasim escaped away from the scene and saved his life". The appellants were on bail during trial and they had not misused the liberty. There is no likelihood of early hearing of the appeal in near future.
Per contra, learned AGA and learned counsel for the complainant have opposed the prayer for bail and supported the trial court's judgment. It has further been contended that all the accused have been named in the F.I.R. and specific role has been assigned to appellant Shakeel of firing at the deceased causing his murder. It has further been submitted that according to the Ballistic Examination Report the fire was shot at the deceased with the same pistol which was recovered from the possession of appellant Shakeel alias Bittoo. It has further been submitted that appellant no. 1, Shakeel alias Bittoo is having a long criminal history. It has further been submitted that Cr. Appeal No. 714 of 2015 and Government Appeal No. 1101 of 2015 filed against the acquittal order with respect to the other co-accused have been admitted and pending before this Court.
Having given my thoughtful consideration to the submissions of the learned counsel for the parties, without expressing any opinion on the merits of the case, we are of the opinion that the appellants Nadeem, Nafees and Amjad have made out a case for bail and no case for bail is made out to appellant Shakeel alias Bittoo.
Let the appellants Nadeem, Nafees and Amjad convicted and sentenced in S.T. No. 94 of 2012, S.T. No. 95 of 2012, S.T. No. 96 of 2012, S.T. No.97 of 2012 and S.T. No. 98 of 2012, under sections 302/149, 307/34 I.P.C. and 25 Arms Act, police station Devband, District Saharanpur be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.The photocopies of the bonds so furnished be transmitted to this Court to be kept on record of the appeal.
So far as the bail prayer of appellant Shakeel Alias Bittoo is concerned, it is hereby rejected.
On deposit of 50% of fine imposed on the appellant nos. 2, 3 and 4, the remaining fine shall remain stayed during pendency of the appeal.
List this appeal for hearing in due course along with connected appeals.
Order Date :- 4.5.2018/Gss
