Pappu @ Zafar vs State Of U.P.
2022 Latest Caselaw 8514 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 12
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3050 of 2019
 

 
Applicant :- Pappu @ Zafar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Prem Kumar Singh,Amit Kumar Awasthi,Amrendra Singh,Khaleeq Ahmad Khan,Pradeep Kumar Singh,Sushil Kumar Singh
 
Counsel for Opposite Party :- G.A.,Rahul Agnihotri
 
along with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 3042 of 2019
 
Applicant :- Anshu Mishra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Punit Kumar Shukla,Amit Kumar Awasthi,Khaleeq Ahmad Khan,Shubham Shukla
 
Counsel for Opposite Party :- G.A.,Rahul Agnihotri
 

 

 
Hon'ble Mohd. Faiz Alam Khan,J.

Both above placed bail applications in order to avoid multiplicity of recording the reasons and marshaling of facts are being disposed of by passing this common order.

Heard Shri Sushil Kumar Singh, learned counsel for the accused-applicant/Pappu @ Zafar, Shri Punit Kumar Shukla, learned counsel appearing for accused-applicant/Anshu Mishra, Shri Rahul Agnihotri, learned counsel claiming himself to be appearing on behalf of the complainant/informant as well as learned A.G.A. for the State and perused the record.

This bail application has been moved by the accused/applicants- Pappu @ Zafar and Anshu Mishra, for grant of bail, in Case Crime No. 1330 of 2018, under Section 304 I.P.C., Police Station Kotwali Sadar, District Kheri, during trial.

Learned counsel for the accused-applicants while pressing the bail application submit that it is a case of false implication and the applicants have been named in the fist information report only on the basis of prior enmity as is admitted to the prosecution also.

It is further submitted that first information report of this case has been lodged by the father of the deceased namely Abrar on 12.11.2018 at Police Station Kotwali Sadar, District Kheri, wherein it is alleged that on 11.11.2018 at about 7:00 pm. Pappu @ Zafar (applicant) had made a call on the mobile phone of the deceased Afaq and called him behind the 'Ajay Motors Garage' on the pretext to get some money and at about 8:10 pm. his younger son Akram got an information from the Dial 100 Police informing him that a person in the name of Afaq (deceased) has been found lying in an injured condition behind the 'Ajay Motors Garage' and it was informed by the deceased Afaq (who was injured at that point of time) that he was called by the applicants on the pretext of paying some money and have been assaulted by them by 'danda, saria and interlocking bricks'. The postmortem report of the deceased would reveal that he had received 08 injuries at different parts of his body and the cause of death of the deceased had occurred due to 'shock and hemorrhage', as a result of 'antemortem injuries'.

Highlighting the above factual matrix, it is vehemently submitted by learned counsels for the applicants that it is a case purely based on circumstantial evidence as nobody had claimed to have seen the occurrence. The informant of the case is admittedly not an eye witness. The investigating officer of the case in the course of investigation is claimed to have recorded the statements of various witnesses and a conjoint reading of the statements of these witnesses would reflect that they have either seen the deceased in the company of the applicants or they were accompanying the deceased when a phone call has been allegedly received by the deceased from Pappu @ Zafar (applicant). Thus, there is only strong suspicion and on the basis of suspicion alone the conviction of the applicant could not be secured.

It is further submitted that the recovery of a 'mobile phone' allegedly of the deceased has also been shown from the joint pointing out of the applicants but the witnesses who have shown to be of such recovery are interested witnesses and their testimony pertaining to the recovery could not be believed. While highlighting the postmortem report as well as the injury report of the victim, it is vehemently submitted that the deceased was admitted in the hospital at 9:35 pm. and had died at 10:15 pm., therefore, in all probability he could not be in a position to speak as claimed by different prosecution witnesses.

It is also submitted that the motive which has been assigned for the commission of crime is very weak. Applicant is in jail in this case since 15.11.2018 and till now not a single witness has been presented before the trial Court by the prosecution. Thus, the intention of the prosecution is to keep the applicants behind the bars for a very long time.

It is also submitted that though the criminal history of 24 cases has been alleged against the applicant Pappu @ Zafar and of 14 cases against the applicant Anshu Mishra, but so far as the applicant Pappu @ Zafar is concerned in the criminal history submitted by the complainant and the State with regard to him, many criminal cases have been shown again and learned counsels in this regard has highlighted at least 4 cases which have been shown twice, while with regard to the applicant Anshu Mishra, it is claimed by learned counsel for the applicant that in many of such cases the applicant has been acquitted and the criminal history is not having any bearing on this case as the evidence against the applicant is very weak.

It is also submitted that the applicants are in jail in this case since 15.11.2018 and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.

Shri Rahul Agnihotri, learned counsel claiming himself to be representing the complainant/informant submits that there are witnesses who have seen the deceased in the company of the applicants. The deceased was called by the applicant Pappu @ Zafar by making a phone call to him and there were many witnesses whose statements have been recorded by the investigating officer who had seen the applicants standing with the deceased on that very place from where the deceased, who at that point of time was injured, had been found and thus, in all probability the brutal assault has been given by the applicants as a result of which the deceased had died.

While referring to the statement of two witnesses namely Constable Mohit Pandey and Home Guard Lallu Ram, it is vehemently submitted that the deceased, who at that point of time was injured, had informed them that he has been assaulted by the applicants and the statements so given by the deceased is admissible as 'dying declaration' as provided under Section 32 of the Indian Evidence Act.

It is also submitted that story of the prosecution is also corroborated as the deceased has been admitted in the hospital by the police and a phone call is stated to have been mde by police on the mobile phone of the son of the informant namely Akram and thus, having regard to the evidence/material available against him, the applicant is not entitled to be released on bail.

Learned A.G.A., has also opposed the prayer of bail of the applicants on the ground that the applicants are accused of committing an heinous offence and keeping in view their criminal history they are not entitled to be released on bail.

In rebuttal, learned counsel for the applicants has relied on the judgment of Hon'ble Supreme Court passed in 'Prabhakar Tewari vs The State Of Uttar Pradesh', dated 24 January, 2020 as well as on 'Union of India vs. K.A. Nazeeb', dated 1 February, 2021 passed in Criminal Appeal No. 98 of 2021 arising out of SLP (Crl.) No. 11616 of 2019 and submits that the applicant has also entitled to be released on bail that the prosecution has failed in its duty to produce the prosecution witnesses.

Having heard learned counsel for the parties and having perused the record, it would be transpired that though in the first information report, it is alleged that the deceased had been called by the applicant Pappu @ Zafar on the pretext of paying some money to him but informant is not an eye witness. However, it is stated in the first information report that the deceased had left the home at 7:00 pm. and it was at 8:10 pm. a phone call has been received on the mobile phone of the younger son of the applicant namely Akram pertaining to the fact that the deceased is lying in an injured condition behind 'Ajay Motors'. Multiples injuries of the nature of contusions, abrasions, stitched wounds, etc. have been found on the person of the deceased. There are many witnesses whose statements have been recorded by the investigating officer, who have claimed to have seen the applicants and deceased together, soon before he was found in an injured condition at the same place. Mobile phone of the deceased is also stated to have recovered from the joint pointing out of the applicants. Significantly, there are two police personnels whose statements have been recorded by the investigating officer namely Constable Mohit Pandey and Home Guard Lallu Ram, who have stated that at 8:29 pm. they got an information on Dial 100 that some persons are assaulting a person behind 'Ajay Motors' and they immediately arrived at the scene and found the injured Afaq who informed them that he has been assaulted by the applicants with 'danda, saria and interlocking brick. These police personnels have also claimed to have got the deceased admitted in the hospital and has also informed the younger son of the informant namely Akram, which also founds corroboration from the avertments made in the first information report. Thus, the above placed evidence/circumstances clearly suggest that at first the applicants have seen together at the place of occurrence and secondly the deceased has been found in an injured condition on the same place and has attributed the cause of his injuries to the assault given by the applicants. in his statement given before two police personnels. Thus, I find force in the submissions of learned counsel for the State and complainant that the statements which has been given by the deceased to the two police personnels pertaining to the cause of inflicting of injuries by applicants would be admissible as 'dying declaration'. Both the applicants are having long criminal history to their credit, however, the same has been disputed by learned counsels for the applicants by claiming that some of the cases have been mentioned twice or thrice, but the crux of the matter remains that the applicants are having many criminal cases pending against them.

Thus, having regard to the totality of facts and the material/evidence/circumstances available against the applicants, I am not inclined to exercise my discretion in favour of the applicants. Thus, the bail applications moved on behalf of the applicants, Pappu @ Zafar and Anshu Mishra is, hereby, rejected.

It is reflected before this Court and is also admitted to learned counsel for the complainant/informant that till now not a single prosecution witnesses have been testified. Learned counsel for informant/complainant also submits that the prosecution witnesses are regularly attending the Court. It is painful to observe as to when, as per the statement of learned counsel for the complainant/informant that the prosecution witnesses are attending the trial Court, as to why their statements are not being recorded by the trial Court, moreso in the background that the applicants are in jail in this case for the last four years. No need to say that in those cases at least, where the accused persons have been in jail for a considerable period of time, the Presiding Officer of the Courts below will have to act proactively in order to procure the attendance of the witnesses.

This Court hope and trust that now the trial Court would make an introspection and would act proactively and would use all possible means permissible under law to procure the presence of prosecution witnesses even by fixing the dates in this case once in a week or once in fortnight, in order to conclude the trial within one year positively, without fail.

No need to say that a status report in this regard shall be sent by the trial court after one year from today to this Court and if the trial Court fails to conclude the trial within one year, the applicants would be having a right to approach this Court again for the purpose of grant of bail.

At this juncture, it is submitted by learned counsel appearing for the accused-applicant, Anshu Mishra that he is critically ill and commensurate treatment is not being provided. If it is true, the Superintendent of Jail, Pilibhit is directed to provide all possible medical help/treatment to the accused person and in this regard the trial Court is also directed to monitor that proper and appropriate medical treatment and aid is provided to the applicant Anshu Mishra regularly, if it is required.

A copy of this order be immediately sent to the trial Court for compliance.

Order Date :- 29.7.2022

Praveen