Shahnawaz vs State Of U.P.
2023 Latest Caselaw 6757 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44532 of 2022
 

 
Applicant :- Shahnawaz
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Nafees Ahmad
 
Counsel for Opposite Party :- G.A.,Syed Mohd. Fazal
 

 
Hon'ble Sanjay Kumar Singh,J.

Heard Mr. Nafees Ahmad, learned counsel for the applicant, learned Additional Government Advocate representing the State and Mr. Syed Mohd. Fazal, learned counsel appearing on behalf of the first informant / complainant.

By means of this application under Section 439 of Cr.P.C., applicant Shahnawaz, who is involved in Case Crime No. 175 of 2022, under Sections 147, 148, 149, 302 IPC, police station Charthawal, district Muzaffar Nagar, seeks enlargement on bail during the pendency of trial.

As per prosecution case, in brief, the informant, who is grandson of the deceased, lodged the first information report of this case on 11.06.2022 against Danish, Kazim, Rahil, Anish, Nafees, Shahnawaz (present applicant) and three unknown persons alleging inter alia that his grandfather Sarafat Ali is the ex-village pradhan. Danish's mother is also the ex-pradhan. His grandfather has made complaint of the scams in the development work in the regime of Danish's mother to the higher officers and sought information regarding the scams under Right to Information Act. Danish was annoyed with the complaints and was inimical to his grandfather. Today at about 9-1/2 to 10 P.M., Danish alongwith Kazim, Rahil, Anish, Nafees, Shahnawaz and two-three unknown persons armed with weapons and country-made pistol barged into his house. The accused persons with a common intention scuffled with his grandfather and also beaten him. Accused Danish, Rahil and others with an intention to kill him assaulted on his head and chest with butt of the country-made pistol and also throttled with the waistcloth (angocha). When the informant, Praveen and Shahnawaz came for his rescue, the aforesaid accused persons with an intention to kill them also fired upon them. The informant took his grandfather to the district hospital in a serious condition, where the doctor declared him dead.

It is argued by learned counsel for the applicant that as per the prosecution case, there was political rivalry between Sarafat Ali (grandfather of the informant) and Hushnara (mother of co-accused Danish) because both are ex-village pradhans. The main motive has also been assigned to co-accused Danish because Sarafat Ali (grandfather of the informant) had made a complaint against the mother of co-accused Danish to higher officers regarding the scam done in the development work during her tenure as village pradhan. So far as present applicant Shahnawaz is concerned, it is argued that as per the version of the first information report, accused Danish and Rahil alongwith other co-accused persons including the applicant assaulted the deceased by the butt of the country-made pistol on his head and chest but in the post mortem report of the deceased, no injury has been found on his head and chest. It is also argued that allegation of throttling the deceased by waistcloth has been levelled against Danish, which is also not corroborated from the injuries found on the body of the deceased because no ligature mark was found all around the neck but reddish abrasion of size 8 x 2 cm. on right neck, 8 cm. below right ear was found. Referring to the statements under Section 161 Cr.P.C. of Shahnawaz, Praveen, Khaliq, Mushtaq, Shaukeen and Mehraj, it is pointed out that only role of catching hold has been assigned to Kazim, Anish, Nafees, Shahnawaz (present applicant) and two-three unknown persons and role of pressing the neck of the deceased from behind has been assigned to co-accused Danish. It is also submitted that co-accused Rahil has been exonerated during the course of investigation. The applicant does not have any criminal history to his credit. Lastly, it is submitted by the learned counsel for the applicant that there is no chance of the applicant fleeing away from the judicial process or tampering with the prosecution evidence. The applicant is languishing in jail since 30.08.2022 and in case, the applicant is released on bail, he will not misuse the liberty of bail and cooperate with the trial.

Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that the deceased was of very strong stature. If the applicant alongwith other co-accused had not caught hold the deceased, he could have saved himself. Learned counsel for the informant placing reliance upon the judgment of the Apex Court in the case of Kumer Singh Vs. State of Rajasthan and another, 2021 CRL. LJ 4244 submitted that since the applicant was involved in the crime alongwith co-accused Danish and was present at the spot as member of unlawful assembly, his bail application is liable to be rejected in the light of Section 149 IPC.

Having heard learned counsel for the parties and examined the matter in its entirety, I find that role of throttling has been assigned to co-accused Danish. In the first information report, it is alleged that all the accused persons assaulted the deceased by butt of the country-made pistol on his head and chest but no injury has been found on the head and chest of the deceased. The ligature mark is also not complete all around the neck. The eye-witnesses have also stated that the deceased snatched the pistol of co-accused Danish, on which, Danish alongwith his associates caught hold the deceased with a view to take back said pistol. As such, incident took place in the spur of the moment. The eye-witnesses have assigned the role of catching hold to the present applicant, therefore, case of present applicant is distinguishable from the case of co-accused Danish as motive is also attributed to him. So far as judgment of Kumer Singh (supra) relied upon by learned counsel for the informant is concerned, I find that the same is distinguishable on facts. It is well settled that every case turns on its own facts, even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect of the matter. This Court feels that in exercise of power under Section 439 Cr.P.C., there is no need to record any finding at this pre-trial stage with regard to effect of Section 149 IPC in the matter as defence of the accused is still open to be urged before the trial Court.

Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.

Let the applicant Shahnawaz, be released on bail in the aforesaid case crime number on 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) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.

(ii) That 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.

(iii) That after his release, the applicant shall not involve in any criminal activity.

(iv) The identity, status and residential proof of sureties will be verified by court concerned.

In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail.

Order Date :- 2.3.2023

Shubham