Arif vs State Of U.P.
2023 Latest Caselaw 21914 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:164401
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33466 of 2023
 

 
Applicant :- Arif
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Rajiv Kumar Mishra, Shashi Kant
 
Counsel for Opposite Party :- G.A.
 
Connected with
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21907 of 2023
 

 
Applicant :- Anis @ Sonu
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Gajendra Kumar Gautam
 
Counsel for Opposite Party :- G.A.,Mohd. Samiuzzaman Khan
 
Connected with
 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15541 of 2023
 

 
Applicant :- Nadeem
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Kuldeep Singh Yadav,Ajay Kumar Pal,Rajesh Kumar Pal
 
Counsel for Opposite Party :- G.A.,Deepak Rana
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Rajiv Kumar Mishra, the learned counsel for applicant-Arif, Mr. D.K. Gautam, the learned counsel for applicant-Anis @ Sonu and Mr. Kuldeep Singh Yadav, the learned counsel for applicant-Nadeem, the learned A.G.A. for State and Mr. Deepak Rana and Mr. Mohammad Sami Ujjama Khan, the learned counsel representing first informant.

2. These applications for bail have been filed by the applicants Arif, Anis @ Sonu and Nadeem seeking their enlargement on bail in Case Crime No. 616 of 2012 under Sections 302, 201, 404, 324 IPC, P.S. Tilamod, District Ghaziabad, during the pendency of the trial.

3. Record shows that an incident occurred on 9.10.2022, in which one person was died. The dead body of this unknown person was recovered on 10.10.2022 by the police and G.D. entry regarding the same was made in the General Diary of the concerned police station on 10.10.2022. The inquest (panchayatnama) of the recovered dead body was conducted on 10.10.2022. The witnesses of inquest (Panch witnesses) could not ascertain the exact cause of death of deceased and therefore, they could not opine with regard to the nature of death of deceased i.e. whether it is homicidal or suicidal. The post mortem of the body of the deceased was conducted thereafter. The Autopsy Surgeon did not find any external or internal ante mortem injury on the body of the deceased. As a result, the viscera of the deceased was preserved for chemical examination. Viscera report was submitted on 10.5.2023. As per the opinion of the Chief Chemical Analyst Alphazolam and Ethyl Alcohol were found in the body parts of the deceased sent for chemical examination. After 37 days from the date of occurrence, a delayed F.I.R. dated 16.11.2022 was lodged by first informant Abid Qureshi and was registered as Case Crime No. 616 of 2012 under Sections 302, 201, 404, 324 IPC, P.S. Tilamod, District Ghaziabad. In the aforesaid F.I.R. four persons namely Arif, Nadeem, Nadeem and Sonu have been nominated as named accused.

4. It is apposite to mention here that before aforementioned F.I.R. came to be lodged, the Investigating Officer recovered C.C.T.V. footage of the premises, where the accused was last seen and also recorded the statements of one Nihal, who alleges himself to be an eyewitness of last seen and one Sunni Panjabi, who also claims himself to be an eye witnesses of last seen.

5. After above mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. During course of investigation, Investigating Officer recorded the statements of first informant and the following witnesses under Sections 161 Cr.P.C.:-

(i). Nihal

(ii). Sanni Panjabi

(iii). Abid Quraishi, First Informant

6. Certain recoveries were also made by the Investigating Officer. He recovered the ATM Card of ICICI Bank of deceased from accused-Arif on 17.11.2022. Thereafter, shoes of the deceased were recovered from named accused-Nadeem on 17.11.2022. The ATM Card of HDFC Bank and Purse of deceased was recovered from accused Anish @ Sonu.

7. On the basis of above and other material collected by the Investigating Officer, during course of investigation, he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly, submitted the charge sheet dated 02.02.2023 whereby 3 of the named accused have been charge sheeted under Sections 302, 201, 404 and 34 IPC whereas one of the named accused Nadeem Son of Shamshad has been charge sheeted under Section 201 IPC only.

8. Learned counsel for applicants contend that though applicants are named as well as charge sheeted accused yet they are liable to be enlarged on bail. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence. In view of above, the complicity of applicants in the crime in question has to be determined as per law laid down by Apex Court in Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 (Paragraph 152), wherein Court has laid down the parameters which are required to be considered before inferring the guilt of an accused in a case based on circumstantial evidence. He, however, submits that up to this stage none of the parameters laid down by Apex Court in aforementioned judgment are satisfied against applicants. The only evidence that has emerged against applicants is the statements of 2 of the witnesses examined prior to the lodging of the FIR namely Nihal, E-rikshaw driver and Sunni Punjabi, the guard of the premises, where the deceased was last seen. There is also the CCTV Footage of the place of occurrence where 3 accused are seen. According to the learned counsel for applicants, when aforesaid witnesses are examined in a conjoint manner, the version of occurrence that has emerged in the aforesaid peaces of evidence is neither coherent nor consistent. It is thus contended that on the above premise, as per the evidence collected by the Investigating Officer, the prosecution itself is not clear about the prosecution story which is wants to establish against applicants. According to the learned counsel for applicant, mere recovery of ATM Card of the deceased, shoes of the deceased and the purse of the deceased by applicants is by itself not such an incriminating circumstance so as to infer the guilt of the applicants in the crime in question.

9. Even otherwise, applicants are men of clean antecedents inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 17.11.2022. As such, they have undergone almost 9 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. Therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the continuation of custodial arrest of applicants during the pendency of trial.

10. It is lastly contended that the case of applicant Nadeem is different from the other 2 accused inasmuch as applicant Nadeem has been charge sheeted only under Section 201 IPC. Since the dead body of the deceased was already recovered, therefore, no charge under Section 201 IPC can be maintained against applicant-Nadeem. On the above premise, it is thus urged that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

11. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicants are named as well as charge sheeted accused, therefore, they do not deserve any indulgence by this Court. The complicity of the applicants in the crime in question is established as per the evidence on record. Referring to the judgment of the Supreme Court in State of Rajsthan Vs. Bhup Singh, (1997) 10 SCC 675. It is sought to be contended that since the prosecution story is corroborated by the evidence on the record leading a clear consistency, therefore, no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

12. Having heard, the learned counsel for applicants, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, prima-facie, the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (Supra) are not satisfied against applicants, as per the ocular version of the 2 witnesses namely Nihal and Sunni Panjabi, the prosecution story which has emerged out is not clear and consistent, the CCTV footage recovered by the Investigating Officer, during the course of investigation, does not corroborate the ocular version of the occurrence as has emerged in the statement of aforesaid 2 witnesses, the recovery made from the applicant is after 38 days from the date of occurrence, there is no independent witness of the recovery, therefore, prima-facie, the same is said to be false, the clean antecedents of applicants, the period of incarceration undergone and coupled with the fact that though the charge sheet has been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized but inspite of above, neither the learned A.G.A. nor the learned counsel representing first informant could point out from the record any such circumstance necessitating the custodial arrest of applicants during the pendency of trial, the case of applicant-Nadeem being distinguishable from the other 2 accused noted above but without making any comments on the merits of the case, applicants have made out a case for bail.

13. Accordingly, the bail applications are allowed.

14. Let the applicants-Arif, Anis @ Sonu and Nadeem, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

15. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 16.8.2023

Vinay