Nabi Ahmad vs State Of U.P.
2023 Latest Caselaw 13749 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 47
 
Case :- CRIMINAL APPEAL No. - 7302 of 2022
 
Appellant :- Nabi Ahmad
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Shri Ram (Rawat),Shushil Kumar Mishra
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 6660 of 2022
 
Appellant :- Banta @ Beant Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Amar Nath Singh,Ram Prakash Sharma,Saurabh Yadav,Vimlendu Tripathi
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Shri Ram (Rawat),Shushil Kumar Mishra
 
And
 
Case :- CRIMINAL APPEAL No. - 7194 of 2022
 
Appellant :- Rizwaan
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Shri Ram (Rawat),Shushil Kumar Mishra
 
And
 
Case :- CRIMINAL APPEAL No. - 7319 of 2022
 
Appellant :- Farookh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Shri Ram (Rawat),Shushil Kumar Mishra
 
And
 
Case :- CRIMINAL APPEAL No. - 7320 of 2022
 
Appellant :- Amanveer Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent: G.A., Indra Deo Mishra, Shri Ram (Rawat), Shushil Kumar  Mishra
 
And
 
Case :- CRIMINAL APPEAL No. - 7326 of 2022
 
Appellant :- Ranjeet Kaur
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Shri Ram (Rawat),Shushil Kumar Mishra
 
And
 
Case :- CRIMINAL APPEAL No. - 7330 of 2022
 
Appellant :- Karam Singh
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A.,Indra Deo Mishra,Pankaj Kumar Tiwari,Shri Ram (Rawat)
 
And
 
Case :- CRIMINAL APPEAL No. - 7332 of 2022
 
Appellant :- Gurpawan Kaur
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Raghuvansh Misra
 
Counsel for Respondent :- G.A., Indra Deo Mishra, Shri Ram (Rawat), Shushil Kumar Mishra
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Vinod Diwakar,J.

(Delivered by Hon'ble Vinod Diwakar,J.)

1. We have heard Shri Raghuvansh Misra, Shri Vimlendu Tripathi, Shri Rajeev Lochan Shukla, learned counsels for the appellants, Shri I.D. Mishra learned counsel for the informant and learned A.G.A. for the State.

2. The accused-appellants- Nabi Ahmad, Banta @ Beant Singh, Rizwan, Farookh, Amanveer Singh, Ranjeet Kaur, Karam Singh and Gurpawan Kaur have been convicted in Sessions Trial No. 379 of 2017 (State of Uttar Pradesh Vs. Amanveer Singh and others) arising out of Case Crime No. 419 of 2017, under Sections 147, 148, 452, 307/149, 302/149, 506 I.P.C., along with connected Sessions Trial Nos. 377 of 2017 and 378 of 2017, arising out of Case Crime Nos. 431 of 2017 and 432 of 2017 respectively, Police Station Bisalpur, District Rampur and the maximum sentence of life imprisonment is awarded to all the accused-appellants. The rest of the sentences are lesser sentences, and all the sentences have been ordered to run concurrently.

3. As per the prosecution case, the complainant's real brother Gurcharan Singh was murdered about two and a half years ago due to family enmity over land, whose case is pending trial in District Rampur. An attempt was also made to kill the complainant's real sister, Jaspal Kaur, and its report was registered at P.S. Bilaspur. On 28.06.2017 at around 03.00 p.m., the complainant's father, Sukhwinder Singh, was busy in the demarcation of land with the help of Patwari, Kanoongo and two police officers. All of a sudden, the complainant heard the commotion and saw Amanveer Singh son of Karam Singh, Karam Singh, Ranjeet Kaur, Gurpawan Kaur, Banta Singh, Nabi Ahmad @ Nabia, Farookh Ahmad and son of Nabia Ahmad, along with some unknown persons barged into the house of the complainant and shouted, no one should be spared today. After hearing the threatening call, all started running here and there to save their lives. Meanwhile, Amanveer Singh and his accomplice Nabia and Farookh shot at the complainant's maternal uncle Jaspal Singh and caused severe injuries. The complainant's mother also rushed inside the house to save her life. Amanveer shot at her from his pistol and caused grievous injuries to her. The complainant's real sister Jaspal Kaur hid inside the bathroom. Amanveer broke the door and shot her dead. She died on the spot. The complainant and her mother saw Jaspal being shot at; thereafter, Amanveer shot at the complainant's father, Sukhwinder Singh, and somehow he saved his life. The entire incident was captured in a CCTV camera installed at the complainant's house. After hearing the sound of the gunshot, the police and local people arrived, and on their challenge, the assailants fled towards the sugarcane field.

4. On the basis of such written complaint, Case Crime No. 419 of 2017 at P.S. Bilaspur, District Rampur, was registered under sections 147, 148, 149, 452, 307/149, 302/149 and 506 I.P.C. Thereafter, the police initiated the investigation.

5. Jaspal Singh and Gurmeet Kaur were seriously injured in the shoot-out, whereas Jaspal Kaur died on the spot. The deceased age was 28 years. The following ante-mortem injuries were present on the dead body.

"(a) Traumatic swelling 5cm x 2cm on the back side of the head towards left and was 12 cm above the left ear.

(b) Firearm wound of entry 2.5cm x 1.00 cm viscera deep at the back of the chest towards left 9 cm below left shoulder and collar of abrasion was present."

6. The Doctor opined the cause of death was a result of shock and excessive bleeding due to ante-mortem injuries.

7. The injured Jaspal Singh was immediately taken to the hospital, and he died on the next day i.e. on 29.06.2017, at Gangasheel Hospital following ante-mortem injuries were noticed:-

"(a) 1cm x 1cm lacerated wound cavity deep. There was blackening and signs of singing all around the wound in the middle of chest 10 cm towards the centre from right nipple and was in 3 O'Clock position. This wound was wound of entry and the margins were inverted.

(b) Surgical wound 26 cm long, had 30 stitches in the middle of the stomach, and was 6.5 cm below injury number 1.

(c) One injury 1cm x 1cm x cavity deep was of tube that had been inserted after surgery and was on the left side of the stomach 9 cm away from the navel/umbilicus.

(d) One injury 1cm x 1cm x cavity deep was of tube that had been inserted after surgery and was on the right side of the stomach 8 cm away from the navel/umbilicus.

(e) One injury 1cm x 1cm x cavity deep was of tube that had been inserted after surgery and was 1.5 cm above the right side of injury number 4.

(f) Stitched wound that was of tube inserted into Lungs and was 1.5 cm long and was on right side of the chest at a distance of 10 cm from right nipple in 8 O'Clock direction.

(g) Surgical wound 4cm x 1cm x cavity deep on right side of lower waist 14 cm above the iliac crest.

The injured Gurmeet Kaur wife of Sukhwinder Singh was examined and following injuries were noticed:-

(a) Fire arm injury on the left arm below the elbow and the wound of entry was 1cm x 1cm and the exit would was 2cm x 2cm.

(b) Fire Arm injury on the outer aspect of the right shoulder 2cm x 4cm and 6 cm from the exit would point, there was wound of re-entry."

8. The investigating officer, after recording the statement of witnesses and collecting documentary evidence, filed the charge-sheet on 05.10.2017 against the accused-appellants Amanveer Singh, Karam Singh, Ranjeet Kaur, Gurpawan Kaur, Banta @ Beant Singh, Nabi Ahmad, Farookh and Rizwan in the court of C.J.M, Rampur.

9. The case was committed to the Court of Sessions on 03.05.2019. The trial court framed charges against the accused appellants. The accused-appellants denied charges and claimed trial. The prosecution, to prove its case, has produced 16 witnesses.

10. PW-1 Sharanjeet Kaur is an eyewitness and the informant in the case. Gurmeet Kaur is an injured witness who has been examined as PW-2, whereas Doctor Paramjeet Singh, who treated the injured Gurmeet Kaur, has been examined as PW-5. Doctor D.V. Singh, who conducted the post-mortem of the deceased Jaspal Singh has been examined as PW-6. Doctor Shiv Mohan Kamal who conducted the autopsy of the deceased Jaspal Kaur has been examined as PW-8. Dr. Gyanendra Gupta who treated the deceased Jaspal Singh at Ganga Sheel Hospital has been examined as PW-12. Rest of the witnesses are police witnesses.

11. After recording of the evidences, the accused-appellants were confronted with the incriminating evidences put forth against them under Section 313 Cr.P.C. and trial court found sufficient evidence, to convict the accused-appellants (1) Amanveer Singh, (2) Karam Singh, (3) Ranjeet Kaur, (4) Gurpawan Kaur, (5) Banta @ Beant Singh, (6) Nabi Ahmad, (7) Farookh, and (8) Rizwan for the offences under Sections 147, 148, 452, 307/149, 302/149 and 506 I.P.C.

12. Accused-appellants Amanveer Singh and Karam Singh had been acquitted from the charge punishable under Section 25 Arms Act.

13. Shri Raghuvansh Mishra, appearing for accused-appellants Nabi Ahmad, Rizwan, Farookh, Ranjeet Kaur and Gurpawan Kaur submits that there are major contradictions in the statements of eye witnesses PW-1, PW-2 and CW-1 being interested and partisan witnesses. He further urged that there were multiple versions of the alleged incident. The police has conducted botched up investigation and falsely implicated the accused-appellants. He further submits that in the FIR, it was alleged that Amanveer Singh, Nabi Ahmad and Farookh had fired at Jaspal Singh and caused grievous injuries to him whereas during trial it has come that Karam Singh and Amanveer Singh have committed murder of Jaspal Singh. The presence of PW-3 is doubtful and he was placed under suspension. The police produced CCTV footage but intentionally did not comply with the requirements of 65-B of The Indian Evidence Act with ulterior motives. The ocular testimony is contrary to the medical evidence. The revenue officer was present at the time of the incident but was not examined during the trial. No incriminating article was recovered from accused-appellants' possession, and the FIR is ante-time. The accused-appellants were on bail during trial and have not violated the terms of bail.

14. Learned counsel appearing for accused-appellant Banta @ Beant Singh submits that as per the entire evidence, it is apparent that the role of causing firearm injury has been assigned to co-accused Amanveer Singh and Nabia @ Nabi Ahmad as well as Farookh. Despite that, the accused-appellant has been falsely implicated in this case while levelling the allegation of exhortation, which is absolutely false and baseless. The appellant was not present at the time of the incident, and his name was arrayed because of previous enmity. He further urged that, basically, it was a land dispute between the informant's family and accused Karam Singh's family, whereas the accused-appellant has absolutely no role. And he is a poor person. The accused-appellant has been languishing in jail since 05.08.2022, was on bail during the trial, and has not violated the terms of bail. The sentence awarded against the accused-appellant is too severe, and even otherwise, the impugned judgment and order suffers from manifest error in law and is highly perverse in nature. Hence, it is likely that the order would be set aside by this Hon'ble Court, and the appeal would succeed.

15. Shri Rajeev Lochan Shukla, appearing for accused-appellants Amanveer Singh and Karam Singh submits that the prosecution case is inconsistent on the place and the manner in which the prosecution alleges the offence. There is a substantial improvement and contradiction in the statement of PW-1, PW-2 and CW-1. The presence of eye witnesses is doubtful. The prosecution has failed miserably to prove its case beyond a reasonable doubt. The investigation of the case was not conducted fairly by the investigating officer and in a casual manner. Charge-sheet has been filed without collecting cogent evidence against the accused-appellants. There are multiple versions of the alleged incident, and police have not conducted the investigation in a fair and transparent manner. In the FIR, no role of causing injury has been assigned to accused Karam Singh, Ranjeet Kaur, Gurpawan Kaur and Banta @ Beant Singh, whereas during the trial, it has come in the testimony of witnesses that accused Amanveer Singh and Karam Singh have murdered Jaspal Singh. The accused, Rizwan was not named in the FIR. He further submits that PW-1 and PW-2 reside in Punjab, and their presence at the place of the incident is highly doubtful. PW-2 is a divorcee and resides with her sister in Punjab. The prosecution has withheld this fact for the reasons best known to them. Dr. S.N. Naidu, who conducted the medical examination of PW-2, was not produced by the prosecution during the trial.

16. Learned counsel further urged that PW-2 was deliberately taken to the private hospital for preparation of a false medical report, and deceased Jaspal Singh was also taken there, but subsequently, he was shifted to Gangasheel Hospital, and no reference slip has been produced by the prosecution to this effect. The presence of PW-3 is also highly doubtful as his name was neither mentioned as an attendant in the medical examination report nor was his presence endorsed by PW-5 at the hospital. The CCTV footage, whose description has also come in the FIR, has not been proved during the trial. The prosecution has failed to produce a certificate mandated under section 65-B of the Indian Evidence Act. He further submits that Balwant Singh, who is the son of deceased Jaspal Singh, was not produced by the prosecution, who is alleged to be an eye witness of the incident. The revenue officer, who was present at the time of the demarcation of land and claimed to have an independent witness, was not produced by the prosecution. The participation of accused Ranjit Kaur and accused Gurpawan Kaur being the female members, in the commissioning of the crime, is highly improbable and doubtful. He further submits that no active role has been assigned to the accused Ranjeet Kaur and Gurpawan Kaur in the FIR. The prosecution has not proved the recovery of firearms made from the accused Amanveer Singh and Karam Singh. The FIR is ante-time, and the veracity of the prosecution case is highly doubtful inasmuch as medical evidence is completely diffracted from the prosecution version. There is a material inconsistency between the ocular and medical evidence in this regard. It is further submitted that ocular evidence must prevail unless medical and direct evidence completely renders the prosecution story unbelievable.

17. Per contra, learned A.G.A. and counsel for the informant submit that two persons have been murdered in broad daylight, and the entire episode has been captured in the CCTV camera. The accused and complainant are decadent of a common ancestor. The father of complainant Sukhwinder Singh and Karam Singh are real brothers, and there is previous litigation pending between them. It is admitted case that on a fateful day, the police officials and Patwari had come for the demarcation of land, and litigation was pending to this effect before the court. It is also admitted that the brother of the complainant was murdered two and half years prior to the date of the incident, and the trial is pending before the trial court. So far as the modus operandi of the commissioning of crime is concerned, it is proved beyond a reasonable doubt. The testimony of the injured PW-1 daughter and PW-2 mother is consistent, and there is no reason for the trial court to disbelieve their testimony. PW-2 suffered a severe injury on her body. Injured Gurmeet Kaur was examined as PW-2, who is also an eye witness to the incident. She suffered firearm injuries on the right shoulder and on the left elbow; PW-5 Dr. Paramjeet Singh, has duly proved her injuries. There is no reason for the prosecution to disbelieve the statement of PW-2, who lost her daughter at the young age of 28 years. The complainant has lost her maternal uncle Jaspal Singh and her real sister. The complainant had lost his brother two and half years ago. The entire crime scene is captured in CCTV camera, so the prosecution has no reason to depose falsely against her cousin, father's brother and aunt. On perusal of the trial court judgment, it is reflected that the statements of PW-1 and PW-2 are consistent and prima facie trustworthy and reliable.

18. Learned A.G.A., as well as counsel for the complainant, has further submitted that accused-appellant Nabi Ahmad has a criminal history of four cases;

(i). Case Crime No. 183 of 1994, under Section 60 of Excise Act,

(ii). Case Crime No. 207 of 1999, under Section 3 of U.P. Goonda Act, (iii). Case Crime No. 532 of 2002, under Sections 308, 504, 506 I.P.C. and (iv). Case Crime No. 31 of 2008, under Section 110 G of Cr.P.C., all registered at Police Station Bilaspur, District Rampur.

It is further submitted that accused Amanveer Singh and Karam Singh had been in jail during the trial.

19. After hearing learned counsel for the appellants, learned A.G.A. for the State and learned counsel for the informant, and perusal of the record, it transpires that it is admitted position that two persons have been murdered in broad daylight and the entire crime scene was captured in CCTV camera, even though the CCTV footage has not been proved in the absence of the requirement of Section 65-B of the Indian Evidence Act but was produced before the trial court. The trial court has dealt with the CCTV camera footage at page 50 of the impugned judgment in the following manner:-

"The informant, in her Tahrir paper Exhibit Ka-1, has ascribed to the fact that the incident was recorded in CCTV but the investigating officer PW-13 Ajay Kumar did not collect the same nor made any attempt towards such collection and validation. The CCTV footage was provided to PW-14 Sunil Ahlawat by the informant during the course of investigation and the same has been proved as Exhibit Ka-32 but no recovery memorandum of the same was prepared nor was it sealed and no attempt was made seize the cameras installed around the place of occurrence to have the contents of CCTV footage technically verified to ascertain truth. In absence of technical verification report of the CCTV footage and accompanying certification under s.65B Indian Evidence Act, 1872, the CCTV footage cannot be relied upon."

20. The twin set of arguments are placed before this court to seek suspension of sentence by the counsel for accused-appellant;

(I) The accused-appellants Nabi Ahmad, Banta @ Beant Singh, Rizwan, Farookh, Ranjeet Kuar and Gurpawan Kaur were on bail during the trial, so they are entitled to be released on bail post-conviction.

(ii) The accused-appellants are entitled to the benefit of non-production of a certificate issued under Section 65-B of the Indian Evidence Act to prove the contents of CCTV as it is fatal to the prosecution case and renders the order of conviction prima facie erroneous.

21. Before we proceed to decide the application for suspension of sentence on merits; it's safe to avert to the legal position.

22. As observed by Apex Court in Preet Pal Singh vs. State of U.P.1, there is a difference between the grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389(1) of the CrPC and grant of bail, post-conviction. In the earlier case, there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence; the courts may take a liberal view depending on the facts and circumstances of the case, whereas in the case of post-conviction bail, there is a finding of guilt against the accused persons and the question of presumption of conviction does not arise. The Court considering an application for suspension of sentence and grant of bail is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong and compelling reasons for the grant of bail, and strong, compelling reasons must be recorded in the order granting bail.

23. The discretion under Section 389(1) Cr.P.C., is to be exercised judicially, and this court is obliged to consider whether the accused has a strong likelihood to succeed in the appeal, and there is no unreasonable delay in disposal of the appeal, as held by Supreme Court in Kashmira Singh v. State of Punjab2 and Babu Singh and Ors. v. State of U.P.3

24. In Kalyan Chandra Sarkar v. Rajesh Ranjan and Anr4, the Hon'/ble Supreme Court has held-

"11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind."

25. Even though a detailed examination of the merits of the case may not be required by the courts while considering the application for bail, but at the same time, the exercise of discretion has to be based on well-settled principles and in a judicious manner, and not as a matter of course as held by Apex Court in Chaman Lal v. State of U.P. and Anr5.

26. The Hon'ble Supreme Court, in the catena of judgments, has held that even though detailed examination of evidence and detailed documentation of merits of the case may not be required at the time of suspension of the sentence but the appellate court is duty-bound to objectively assess the matter and record the reasons for its conclusion and for deciding the application under section 389 (1) Cr.P.C.

27. Hon'ble Supreme Court in Preet Pal Singh (supra) has held as under:-

"35. There is a difference between grant of bail under Section 439 of the CrPC in case of pre-trial arrest and suspension of sentence under Section 389 of the CrPC and grant of bail, post conviction. In the earlier case there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v. State of U.P. and Anr. (supra). However, in case of post conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the Court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) of the Cr.P.C.

28. In considering an application for suspension of sentence, the Appellate Court is only to examine if there is a such patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. Where there is evidence that the Trial Court has considered, it is not open to a Court considering an application under Section 389(1) Cr.P.C. to re-assess and/or re-analyze the same evidence and take a different view, to suspend the execution of the sentence and release the convict on bail."

29. In Kishorij Lal v. Rupa and Others6; Hon'ble Supreme Court has curled out the following principle:-

"6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.

8. In Vijay Kumar v. Narendra 7and Ramji Prasad v. Rattan Kumar Jaiswal8 it was held by this Court that in cases involving conviction under Section 302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case, it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order".

30. In Preet Pal Singh (supra), a distinction has been drawn between the grant of bail under Section 439 Cr.P.C. in pre-trial arrest and suspension of sentence under Section 389(1) Cr.P.C. and the grant of bail, post-conviction. In the earlier case, there may be a presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may take a liberal approach, depending on the facts and circumstances, on the principle that bail is the rule and jail is an exception as held by Hon'ble Supreme Court in Data Ram Singh Vs. State of U.P.9 However, in the case of post-conviction bail, there is a definite finding of guilt against the accused persons, and no question of presumption of innocence does arise, nor the principle of bail being the rule and the jail is an exception is attracted. Rather, the court shall actively take a prima facie view on the merits of the appeal coupled with other factors, and there should be strong and compelling reasons for the grant of bail. The relevant portion of the judgment of Preet Pal Singh (Supra) is extracted hereinbelow:-

"35. There is a difference between grant of bail under Section 439 CrPC in case of pre-trial arrest and suspension of sentence under Section 389 CrPC and grant of bail, post conviction. In the earlier case, there may be presumption of innocence, which is a fundamental postulate of criminal jurisprudence, and the courts may be liberal, depending on the facts and circumstances of the case, on the principle that bail is the rule and jail is an exception, as held by this Court in Dataram Singh v.State of U.P. [Dataram Singh v. State of U.P., (2018) 3 SCC 22 : (2018) 1 SCC (Cri) 675] However, in case of post-conviction bail, by suspension of operation of the sentence, there is a finding of guilt and the question of presumption of innocence does not arise. Nor is the principle of bail being the rule and jail an exception attracted, once there is conviction upon trial. Rather, the court considering an application for suspension of sentence and grant of bail, is to consider the prima facie merits of the appeal, coupled with other factors. There should be strong compelling reasons for grant of bail, notwithstanding an order of conviction, by suspension of sentence, and this strong and compelling reason must be recorded in the order granting bail, as mandated in Section 389(1) CrPC.

31. Returning back to the case in hand, as discussed in the preceding para, it is established during the trial that accused Amanveer Singh, along with accused Nabi Ahmad and accused Karam Singh caused grievous injuries to complainant Sharandeep Kaur, who has been examined as PW-1 and her mother Gurmeet Kaur (PW-2). Both the witnesses are witnesses of fact and are injured. It is admitted position that in a broad day shoot-out case, Jaspal Kaur died on the spot due to a gun-shot injury, and Jaspal Singh succumbed to a gun-shot injury, the next day in the Hospital. The entire crime scene was captured on CCTV.

31.1. The counsel for the accused appellants could not demonstrate any patent infirmity in the order of conviction that renders the order of conviction prima facie erroneous. It is not open to this court to reassess and /or reanalyze the evidence and take a different view for disposal of the application under Section 389(1) Cr.P.C.

31.2. The accuse-appellant Amanveer Singh is also involved in FIR No.432 of 2022 registered under Section 3/25 Arms Act at P.S. Bilaspur, District Rampur and F.I.R. No.725 of 2017 under Section 325/323/427 IPC at P.S. Bilaspur, District Rampur.

31.3. The accused-appellant Karam Singh is also involved in FIR No.432 of 2022 registered under Section 3/25 Arms Act at P.S. Bilaspur, District Rampur and F.I.R. No.725 of 2017 under Section 325/323/427 IPC at P.S. Bilaspur, District Rampur.

31.4 The accused-appellant Nabi Ahmad is also involved in half a dozen cases; the details are as follows;

(i) F.I.R. No.116 of 2021 under Section 147, 323, 452, 427, 504 and 506 I.P.C. at P.S. Bilaspur, District Rampur.

(ii) FIR No.183 of 1994 under Section 60 of The Excise Act at PS Bilaspur, District Rampur.

(iii) FIR No.207 of 1999 under Section 3 U.P. Control of Goonda Act, 1970.

(iv) FIR No.532 of 2002 U/S 308, 504, 506 IPC P.S. Bilaspur, District Rampur.

(v) FIR No.31 of 2008 U/S 110 G Cr.P.C. at P.S Bilaspur, District Rampur.

(vi) FIR No.120 of 2018 U/S 135, Electricity Act, P.S. Bilaspur, District Rampur.

31.5. The accused-appellant, Rizwan is also involved in F.I.R No.116 of 2021 U/S 147, 323, 452, 427, 504, 506 IPC at P.S Bilaspur, District Rampur. The accused-appellant was on bail during trial and has been languishing in jail since 05.08.2022.

31.6. The accused-appellant Ranjit Kaur is also involved in FIR No.725 of 2017 U/S 325, 323, 327 IPC at P.S. Bilaspur, District Rampur and FIR no.180 of 2018 U/S 325 and 506 IPC at P.S. Bilaspur, District Rampur. The accused-appellant was on bail during trial and has been languishing in jail since 05.08.2022.

31.7 The accused-appellant Gurpawan Kuar is also involved in FIR No.186 of 2018 U/S 323, 506 IPC at P.S. Bilaspur, District Rampur. The accused-appellant was on bail during trial and has been languishing in jail since 05.08.2022. The accused-appellant is a young lady of age 31 years.

31.8 The accused-appellant Banta Singh @ Beant Singh was on bail during trial and has been languishing in jail since 05.08.2022 and reportedly had no criminal history.

31.9. The accused-appellant Farookh is also involved in FIR No.120 of 2018 U/S 135 Electricity Act, at P.S Bilaspur, District Rampur. The accused-appellant was on bail during trial and has been languishing in jail since 05.08.2022.

32. Considering the fact that no role has been assigned to the accused-appellant Gurpawan Kaur and Ranjit Kaur in the FIR and in the statement of PW-1 and PW-2, the accused-appellants are stated to have Kirpan, otherwise also no injury is found on the deceased and injured which could be inflicted from Kirpan. The accused-appellants, being the ladies, are also entitled to the benefit of Section 437 Cr.P.C. The accused-appellant, Gurpawan Kaur, is a young lady with entire life ahead of her, whereas the accused-appellant, Ranjit Kaur, is nearly touching 60 years and no purpose will be served by keeping both the accused-appellants in jail during the pendency of the appeal. Therefore, their sentence is suspended till the pendency of the appeal.

33. The sentence awarded vide order dated 05.08.2022 is suspended till the pendency of appeal qua accused-appellant Banta Singh @ Beant Singh, Farookh and Rizwan, considering that their names are not figured in the FIR. Their involvement is revealed in the supplementary statement of the complainant. Moreover, no specific role has been assigned to both the accused-appellants in the testimony of injured witnesses PW-1 and PW-2. As a consequence thereof, the accused-appellants are released on bail.

34. There are specific findings against the accused-appellants Amanveer Singh, Karam Singh and Nabi Ahmad. The accused, Amanveer Singh, shot dead Jaspal Kaur on the spot and severely injured Jaspal Singh, who succumbed to injuries the next day in the hospital. The weapon of the offence has been recovered on the pointing out of accused-appellants Amanveer Singh and Karam Singh. The injured eye witness PW-2 Gurmeet Kaur had specifically named accused-appellants Amanveer Singh and Karam Singh shot at deceased Jaspal Singh, whereas complainant Sharandeep Kaur, who is examined as PW-1 has also categorically stated that accused Amanveer Singh and his father Karam Singh shot at deceased Jaspal Singh. The name of accused-appellant Nabi Ahmad has also figured in the testimony of PW-1 and PW-2. There are specific findings qua accused-appellant Nabi Ahmad entered into the house of the complainant along with convict Amanveer Singh and Karam Singh. The accused-appellant Nabi Ahmad is involved in six cases of heinous nature registered at P.S. Bilaspur, District Rampur, whereas convict Amanveer Singh and Karam Singh are involved in two more cases each. Considering the macabre nature of the crime wherein two people were shot dead in broad daylight, it would be in the interest of justice to dismiss the application for suspension of sentence of the accused-appellants, namely Amanveer Singh, Karam Singh and Nabi Ahmad, consequently bail application of convict Amanveer Singh, Karam Singh and Nabi Ahmad are dismissed.

35. The accused-appellants- Gurpawan Kaur, Ranjit Kaur, Banta @ Beant Singh, Rizwan and Frookh be released on bail in the above case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned, subject to furnishing undertaking that they will cooperate in the hearing of the appeal.

35.1. Fine shall be deposited by the accused-appellants after eight weeks of their release.

35.2. On acceptance of bail bonds, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.

35.3. List this appeal along with the paper book for the 'final hearing' in due course.

Order Date :- 02.05.2023

A. Gautam/Shafique