Waseem vs State Of U.P.
2022 Latest Caselaw 20186 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 93
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26740 of 2022
 

 
Applicant :- Waseem
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Diwakar Tiwari,Narendra Singh Chahar
 
Counsel for Opposite Party :- G.A.,Dharmendra Kumar Dwivedi,Ram Raksha Tiwari
 

 
Hon'ble Ajit Singh,J.

Heard Sri V.P. Srivastav, learned Senior Advocate assisted by Sri Narendra Singh Chahar and Sri Diwakar Tiwari, learned counsel for the applicant and Sri Ram Raksha Tiwari, Dharmendra Kumar Dwivedi, learned counsel for the complainant, the learned A.G.A. for State and perused the record.

This is a bail application on behalf of the applicant Waseem in connection with Case Crime No.126 of 2020, under Sections 147, 148, 149, 352, 307, 302, 504, 34 I.P.C. Police Station Mundali, district Meerut.

The first information report of this incident was lodged by the complainant about the incident which happened on 19.5.2020 at 7.30 p.m. and it was mentioned in the FIR that when the complainant alongwith his sons namely, Abdul Khaliq and Abdul Majid with other persons were talking in front of their house then suddenly the accused persons namely, Nazim son of Insaf Ali, Abu Bakar son of Niyaz Ahmad, Waseem, son of Niyaz Ahmad, Aslam, son of Tanvir, Gayyur son of Insaf, Nadeem, son of Gayyur, Hamid, son of Hansar, Akram, son of Tanvir, Qadir, son of Hansar and Danish son of Gayyur came there having illegal country made weapons in their hands and started abusing and started indiscriminate firing upon the complainant side and in this firing the sons of the complainant Abdul Khaliq and Abdul Majid had died on the spot and Asjad son of Matloob injured in the firing. It was further mentioned that the accused persons attacked upon the complainant side due to previous enmity and the report was lodged on 19.5.202 at about 8.30 p.m.

Earlier the accused Waseem was granted bail by this Court vide order dated 22.8.2022 in Criminal Misc. Bail Application No.26740 of 2022. The bail granted by this Court was challenged before Hon'ble Apex Court in Criminal Appeal No. 1784 of 2022 arising out of SLP (Criminal) No. 9342 of 2022 and the Hon'ble Apex Court vide order dated 14.10.2022 cancelled the bail granted by this Court to the accused Waseem and this Court was directed to decide the bail application afresh giving reason.

The Hon'ble Apex Court in paragraph nos. 9 and 10 of its order has observed as follows:-

"9. From the order of the High Court which is impugned in the appeal, it is evident that the primary consideration which has weighed with the High Court is that bail had been granted by a Coordinate Bench to co-accused Niyaj Ahmad. As a matter of fact, bail was claimed by the first respondent on the basis of parity.

10. Since the order granting bail to Niyaj Ahmad has been set aside by the judgment of this Court in Ajwar vs. Niyaj Ahmad and anr. (supra) rendered on 30th September, 2022, the impugned order of the High Court would have to be interfered with. The observations of the High Court in regard to other circumstances are bald and vague. The High Court has not dweit on the individual facts of the case at all while granting bail to the first respondent."

Thereafter, in paragraph no. 13 of the Apex Court's order, the Criminal Misc. Bail Application No.26740 of 2022 was restored to the file of the Single Judge of the High Court of Judicature at Allahabad and the Apex Court directed this Court to dispose of the application for bail expeditiously and preferably within a period of one month from the date of receipt of a certified copy of the order.

Learned counsel for the applicant has submitted that the present applicant is quite innocent and he has been falsely implicated in this matter. Learned counsel for the applicant has further submitted that both the deceased persons have received only one gun shot injury on their persons which is evident from their post-mortem reports which are annexed at pages 50 and 62 of the paper book. The post-mortem report of Abdul Khaliq indicates that he has received one fire arm entry wound in the back of head and the cause of death was Carnio Cerebral damage as a result of Ante-mortem fire arm injury and the post-mortem report of Abdul Majid indicates that he has received one fire arm entry wound in abdomen and cause of death was said to be shock and hemorrhage as a result of ante-mortem injury caused by fire arm and the injured Asjad has received one lacerated wound of 4 cm x 5 cm x scalp deep on left perinatal region of head about 10 cm above left ear. Injury no.2 was abrasion 4 cm x 2 cm on left knee. Injury no. 3 was multiple abrasion 2 cm x 2 cm and 1.5 cm x 1 cm over left palm on anterior on left hand. This injured was medically examined on the next day of the incident i.e. 20.5.2020 at 2.15 p.m. and this injured had refused his X-ray to be conducted which he has said in his statement recorded under section 161 Cr.P.C. which is annexed at page 75 onward of the paper book. He further submits that two persons from the side of the defence had also received injuries on their persons. When the Investigating Officer arrested accused Niyaj Ahmad in the morning of 20.5.2020, he found that the accused was having injuries in his head and right hand and the other co-accused Abu Bakar was having blood stains injuries in his head. He further submits that when these persons were carried to Magistrate for remand, the Magistrate directed that their medical examinations to be conducted. The accused persons had given an application to the Duty Magistrate with a prayer that their medical examinations be conducted. When injured accused Niyaj Ahmad was medically examined and his X-ray of right elbow was conducted, the doctor found a foreign body of metallic density in right elbow with soft tissue injuries with multiple small fractures on medial apicondyle of humorous bone. The patient was referred to a surgeon in Pyare Lal Sharma District Hospital, Meerut. He also submits that the prosecution has not come up with clean hands and the prosecution has suppressed the material facts of this case. He also submits that ten persons were nominated in the incident of assaulting the complainant side and later on, one more person was added during investigation and finally eleven persons were said to have assaulted the complainant side but only two persons from the side of the complainant had received only two firearm injuries on their persons. The deceased Abdul Khaliq and Abdul Majid had received only single bullet injury on their persons as there was allegation of indiscriminate firing from the side of the accused. He also submits that the prosecution has nowhere explained the injuries sustained by the accused persons and it seems that the prosecution had hidden the true genesis of the incident.

Learned counsel for the applicant has placed reliance the judgment of Hon'ble Apex Court rendered in the case of Lakshmi Singh and others vs. State of Bihar and other, reported in 1976 (4) SCC 394. He also placed reliance on another judgment of Hon'ble Apex Court rendered in the case of Babu Ram and others vs. State of Punjab, reported in 2008 (Criminal) Law Journal 651 and also in the case of Amarjeet Singh vs. State of Haryana, reported in 2009 (16) SCC 649.

The Apex Court in paragraph no.12 of Lakshmi Singh's case (Supra) held that "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:

(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:

(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;

(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."

Learned counsel for the applicant has further submitted that from the side of accused persons a cross case was also registered as case crime no. 361 of 2020 by way of application given under section 156 (3) Cr.P.C. Initially the matter was investigated and the police has submitted final report in this case. Later on, the Magistrate directed for further investigation in the matter then again final report was submitted. Again the learned Magistrate vide order dated 18.11.2022 directed for further investigation indicating certain things directing the police to investigate the matter on certain points. Copy of the order dated 18.11.2022 passed by Judicial Magistrate-I, Meerut is annexed at page-43 of the second supplementary affidavit.

Learned counsel for the applicant has relied upon the paragraph nos. 22, 23 and 24 of the judgment of Hon'ble Supreme Court in the case of Munishamappa vs. State of Karnata reported in (2019) 3 SCC 393 which reads as under:

22. The Trial court, as we have noted earlier, was persuaded despite this state of the evidentiary record to acquit the accused primarily on the ground that the injuries on the accused (except accused No. 2) had not been satisfactorily explained. In Lakshmi Singh (supra), a two judge Bench of this Court held thus:

"12...Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence".The decision in Lakshmi Singh has been considered in a later judgment of this Court in Amar Malla v State of Tripura4. A two judge Bench this Court held thus:

"9...From the nature of injuries said to have been received by these accused persons, it would appear that the same were simple and minor ones. It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating officer."

23. The same principle has been followed by another Bench of two judges in State of M P v Ramesh 5 where it was held that:

"11...Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."

24. In Raghubir Singh v State of Rajasthan, a two judge Bench of this Court held thus:

"14...each and every injury on an accused is not required to be explained and more particularly where all the injuries caused to the accused are simple in nature (as in the present case) and the facts of the case have to be assessed on the nature of probabilities..."

Learned counsel for the applicant further submits that the injured accused persons Abu Bakar and Niyaj Ahmad would have received simple injuries then it will not be obligatory on the part of prosecution to explain but when the injured persons had received serious injuries on head and gun shot injury on elbow. The blood was oozing. From those injuries then it will be obligatory to explain on the part of the prosecution positively.

He submitted that the applicant is languishing in jail since 27.05.2020, hence he is entitled to be released on bail and he will not misuse the liberty of bail and will cooperate in the trial.

Learned counsel appearing on behalf of informant has submitted that the present accused was named in the first information report which was lodged promptly. He further submits that since all the accused persons were having common intention and common object in assaulting the complainant side then all the accused persons who have participated in the assault would be vicariously liable of act of the other accused persons. He also submits that the accused persons were aggressor and they had come to the door step of the complainant side and assaulted them without any provocation. He further submits that it will be decided at the stage of trial whether any incident is alleged by the accused persons has taken place, whether the accused persons were assaulted by the complainant side it will be decided by the trial court after taking evidence by both the sides.

Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Lakshmi Singh and others vs. State of Bihar and other, Babu Ram and others vs. State of Punjab and Amarjeet Singh vs. State of Haryana, this Court thinks that eleven accused persons are said to have assaulted the complainant side after indiscriminate firing in which only three persons had sustained injuries on their persons, who later on, died in the hospital from the side of the complainant and the accused side had also received serious injuries, accused Niyaj Ahmad has also suffered gun shot injury in the incident and the injuries sustained by the accused side has not been explained by the prosecution. They ought to have been explained by the prosecution and since it seems that there is a cross version of the incident and it is very difficult to ascertain at this stage who was the aggressor and it will be decided at the stage of trial after taking evidence from both the sides; but without expressing any opinion on merits, this Court finds it to be a fit case for bail.

Accordingly, the bail application stands allowed.

Let the applicant Waseem involved in the aforesaid crime be released on bail on executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:

i) The applicant shall not tamper with the prosecution evidence.

ii) The applicant shall not threaten or harass the prosecution witnesses;

iii) The applicant shall appear on the date fixed by the trial court;

iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission;

v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Any observation made here-in-above by this Court shall not prejudice the trial court in any way.

Order Date :- 7.12.2022

AU/Faridul