Allahabad High Court
Anas vs State Of U.P. on 21 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50445 of 2022
Applicant :- Anas
Opposite Party :- State of U.P.
Counsel for Applicant :- Nagendra Bahadur Singh,Abhishek Kumar Saroj
Counsel for Opposite Party :- G.A.,Sadrul Islam Jafri
Hon'ble Manish Mathur,J.
1. Heard Mr.G. S. Chaturvedi, Senior Advocate assisted by Mr. Nagendra Bahadur Singh & Mr.Abhishek Kumar Saroj, learned counsel for applicant, learned Additional Government Advocate appearing on behalf of State, Mr. N. I. Jafri, Senior Advocate assisted by Ms. Sadrul Islam Jafri, learned counsel for informant and perused the record.
2. This first bail application has been filed by applicant Anas with regard to Case Crime No.1843 of 2021, under Sections 147, 148, 149, 307, 302, 420, 201, 120-B I.P.C., P.S. Kotwali Dehat, District Bulandshahar.
3. As per contents of first information report,the incident is said to have taken place on 05.12.2021 when one Hashim was enroute to attend marriage of his daughter. It is stated that except for the applicant, co-accused surrounded the vehicles and started indiscriminate firing due to which one person Khalid passed away and other 7 persons accompanying him were injured grievously. Applicant's name has been introduced as a conspirator under Section 120B I.P.C with allegation that he was also involved earlier in the murder of his father and step-mother and has also participated in criminal conspiracy to eliminate the said Khalid.
4. Learned counsel for applicant submits that applicant has been falsely implicated in the charges levelled against him and evidence as yet against applicant is only with regard to Section 30 of the Indian Evidence Act which as per judgment rendered by Hon'ble the Supreme Court in Haricharan Kurmi v. State of Bihar, reported in (1964) 6 SCR 623 has been held not to be substantive evidence under Section 3 of the Indian Evidence Act and is in fact merely corroboratory to the main evidence which may be gathered. It is submitted that except for hearsay evidence, there is no other substantial piece of evidence against applicant who is under incarceration since 12.03.2020 with only charges having been framed in the matter. Reliance has also been placed on judgment rendered by Hon'ble the Supreme Court in Surinder Kumar Khanna v. Intelligence Officer, Directorate of Revenue Intelligence, reported in (2018) 3 SCC (Cri) 567 to submit that an accused cannot be convicted purely on the basis of statement of co-accused.
5. Learned Additional Government Advocate appearing on behalf of State as well as learned counsel for informant have opposed the bail application with submission that evidence against applicant in fact does not come within purview of Section 30 of Indian Evidence Act and on the contrary, there is ample evidence available on record and as per charge sheet, 2 independent witnesses one of which Mohsin @ Lala who was also incarcerated along with the applicant has specifically given a statement that applicant confessed his role in hatching criminal conspiracy. It is further submitted that antecedents of applicant do not make out a case for grant of any indulgence particularly when the applicant has been accused of participation in murdering of his step-mother. It is further submitted that deceased Khalid in the present incident is the prime witness in criminal trial against applicant pertaining to his participation and role in murder of his father and, therefore, criminal conspiracy with active participation of the applicant has been hatched for elimination of the prime witness, Khalid in the present case. It has been further submitted that in matters pertaining to Section 120B I.P.C., availability of direct evidence cannot always be true and it is only circumstantial evidence as in the present case which requires to be considered.
6. Learned counsel informant has also adverted to paragraph 14 of the counter affidavit to submit that the applicant is a hardened criminal who is extending threats to first informant to compromise the matter. It has been further submitted that the applicant was earlier admitted to bail by a coordinate Bench of this Court in matter pertaining to F.I.R. No.1843 of 2021 registered in P.S. Kotwali Dehat, District Bulandshahar and the first informant therein had subsequently filed Special Leave Petition (Criminal) bearing Diary no.36377 of 2022 in which Hon'ble the Supreme Court vide order dated 09.12.2022 has directed that the applicant shall not be released pursuant to order of the High Court. As such, it is submitted that there is no occasion for applicant to be enlarged on bail.
7. In rejoinder, learned counsel for applicant has submitted that the antecedents of the so called independent witness Mohsin itself are quite doubtful since the said person also claims to having been incarcerated at the same time along with the applicant and as such is not of a nature of clean and clear evidence. It is submitted that the evidence of other witness against applicant namely Haji Sageer is also not only hearsay but the said person belonging to family of first informant is clearly an interested witness. It is further submitted that the other so called independent witness Tahseen also indicates only hearsay evidence.
8. Considering the submissions advanced by learned counsel for the parties and upon perusal of the material on record, prima facie, and subject to further evidence being led in trial, it appears from a perusal of the F.I.R. that primarily Section 120B I.P.C. has been imputed against applicant read with Sections 307 & 302 I.P.C. apart from other Sections. It is admitted between the parties that the applicant is accused of in the criminal case pertaining to murder of his father as well as step-mother although applicant was subsequently acquitted in the matter pertaining to murder of his step-mother. Apart from the statement of Haji Sageer, at this stage, there appears to be two other independent witnesses, namely Tahseen and Mohsin who have indicated applicant's participation in criminal conspiracy with regard to present incident. It is also admitted that there is allegation of active participation of brothers of applicant in conduct of the entire operation. Although statements of Haji Sageer and Tahseen pertain to hearsay but are subsequently corroborated by the statement of another independent witness, Mohsin which is not in the nature of hearsay. It is no doubt true that at this stage there does not appear to be any other evidence against applicant apart from the aforesaid statement but at the same time it may also be true that direct evidence pertaining to imputation of Section 120-B I.P.C. may be hard to come by and it is only circumstantial evidence in the matter which is of relevance and is required to be corroborated by evidence during the stage of trial. In paragraph 14 of counter affidavit, allegation of first informant and his family members being threatened by applicant has also been alleged. The crime as alleged in the F.I.R. is naturally of a heinous nature particularly looking into the antecedents of applicant and nature of crime. At this stage, this Court does not find any good ground to grant indulgence. The bail Application accordingly is rejected.
9. The trial Court is directed to expedite hearing in the matter pertaining to evidence without granting undue adjournments.
Order Date :- 21.12.2022
kvg/-
