Taufiq Ahmad vs State Of U.P.
2023 Latest Caselaw 25713 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:183659
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38044 of 2023
 

 
Applicant :- Taufiq Ahmad
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vivek Kumar Singh,Sanjay Kr. Srivastava
 
Counsel for Opposite Party :- G.A.,Shailendra Kumar Shukla
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Sanjay Kumar Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. Shailendra Kumar Shukla, the learned counsel for first informant.

This application for bail has been filed by applicant-Taufiq Ahmad seeking his enlargement on bail in Case Crime No.19 of 2023, under Sections 364, 302, 201, 34 IPC, Police Station Kaundhiyara, District Prayagraj, during the pendency of trial.

Record shows that in respect of an incident which is alleged to have occurred on 26.01.2023, a delayed F.I.R. dated 01.02.2023 was lodged by first informant, namely, Smt. Shabana Bano (sister of the deceased), which was registered as Case Crime No.0019 of 2023, under Section 364 IPC, Police Station Kaundhiyara, District Prayagraj. In the aforesaid F.I.R., two persons, namely, Taufiq Ahmad and Suggan have been nominated as named accused.

The gravamen of the allegations made in the F.I.R. is to the effect that named accused kidnapped the brother of the first informant, namely, Abdul Ahad and thereafter his whereabouts are not known.

After aforementioned F.I.R. was lodged on 01.02.2023, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The dead body of the deceased was recovered by the police of police station Ghurpur, district Prayagraj on 04.02.2023.

It is apposite to mention here that after the dead body of the deceased was recovered, an inquest (Panchayatnama) of the body of deceased was conducted in unknown. In the opinion of the witnesses of inquest (Panch witnesses), neither the nature of death nor the cause of death of deceased could be ascertained. Accordingly, it was recommended that the post-mortem of body of the deceased be conducted. Resultantly, the post-mortem of body of the deceased was conducted. The autopsy surgeon, who conducted the autopsy of body of the deceased, found following ante-mortem injuries on the body of the deceased :-

"1. Contusion 7 cm x 4 cm present on right side tip of shoulder.

2. On Dissection - Periosteal hematoma seen on back of skull. Lower jaw and hyoid absent. Hematoma present on neck muscles. Tracheal ring fracture.

On Dissection, hematoma present on chest walls"

In the opinion of the autopsy surgeon, the cause of death of the deceased was asphyxia as a result of ante-mortem strangulation.

During the course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 CrPC, who substantially supported the FIR. As per the material collected by the Investigating Officer the complicity of present applicant in the crime in question came to surface. He was accordingly arrested on 15.02.2023. A woolen stole, which was used in causing strangulation of the deceased, was recovered on the pointing out of present applicant Taufiq Ahmad. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that prima facie complicity of named accused is established in the crime in question. Accordingly, he submitted the charge-sheet dated 10.05.2023, whereby applicant along with co-accused Amzad Ali @ Suggan have been charge-sheeted under Sections 364, 302, 201, 34 IPC.

Learned counsel for the applicant submits that though applicant is a named and charge-sheeted accused yet he is liable to be enlarged on bail. He further submits that co-accused Amzad Ali @ Suggan has already been enlarged on bail by this Court vide order dated 18.07.2023 passed in Criminal Misc. Bail Application No.31263 of 2023 (Amzad Ali @ Suggan Vs. State of U.P.). For ready reference, the same is reproduced herein-under :-

"Heard learned counsel for the applicant and learned A.G.A. for the State.

There is allegation regarding abduction and murder of the brother of the informant against co-accused, Taufiq, since the deceased was working as driver of the truck of the co-accused, Taufiq and he had not paid his wages.

Learned counsel for the applicant submits that subsequently co-accused, Taufiq, had confessed to the commission of murder of the deceased by way of strangulation by mufflar. The mufflar was recovered from the pointing out of the co-accused, Taufiq. The applicant being his brother has been falsely implicated. In the confessional statement of the co-accused, Taufiq, he has assigned the role of catching hold of legs of the deceased to the applicant while he strangulate him to death. Learned counsel for the applicant further submits that applicant had no motive to commit the alleged offence. He has been falsely implicated in this case on the basis confessional statement of co-accused, Taufiq. Nothing incriminating has been recovered from him. Applicant is in jail since 24.03.2023.

Learned AGA has opposed the prayer for bail but could not dispute the above submissions.

Keeping in view the nature of the offence, evidence, complicity of the accused; submissions of the learned counsel for the parties noted above; finding force in the submissions made by the learned counsel for the applicant; keeping view the uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under trial having fundamental right to speedy trial; larger mandate of the Article 21 of the Constitution of India and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant, Amzad Ali @ Suggan, involved in Case Crime No.19 of 2023, under Sections 364, 302, 201, 34 I.P.C, Police Station Kaundhiyara, District- Prayagraj be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.

(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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 him in accordance with law.

In case of breach of any of the above conditions, the complainant is free to move an application for cancellation of bail before this court.

Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted."

On the basis of above, the learned counsel for applicant submits that since both the accused have been charge-sheeted under Section 34 IPC therefore, the case of the present applicant cannot be distinguished from the case of aforementioned charge-sheeted but bailed out co-accused. He, therefore, contends that in view of above the present applicant is also liable to be enlarged on bail. According to the learned counsel for the applicant the only incriminating material that has emerged against the applicant is the confessional statement of the applicant and co-accused and the recovery of woolen stole on the pointing out of the applicant. However, such adverse circumstances are by themself not sufficient to infer the guilt of the present applicant. Since the present case is a case of circumstantial evidence therefore, there is no eye-witness of the occurrence. Referring to the judgement of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, learned counsel for the applicant contends that complicity of an accused in a case based on circumstantial evidence is to be judged in the light of parameters laid down by the Apex Court in aforementioned judgement. However, up to this stage, none of the parameters laid down in the aforementioned judgement are satisfied against the present applicant. The confession made by an accused is a very weak type evidence and can be relied upon only after the same has been corroborated with the material which has emerged during the course of trial Prima facie up to this stage there is no such clinching evidence on the basis of which the guilt of the applicant could be inferred without any doubt. The recovery so made from the applicant on his pointing out appears to be doubtful, inasmuch as, the same has been made after 18 days of the occurrence and from an open place. Since there is no independent witness of recovery therefore, the same appears to be implanted. No motive for committing the crime in question has yet emerged against applicant either. There is nothing to suggest animus behind the occurrence either. Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in custody since 13.02.2023. As such he has undergone more than seven and half months of incarceration. The police report in terms of Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. It is thus urged that the applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that since the applicant is a named/charge-sheeted accused therefore, he does not deserve any indulgence by this Court. Much emphasis was laid to the recovery made on the pointing out of the applicant as well as confessional statement of the accused in opposition to the present application for bail. It is also contended that criminality attached to the named and charge-sheeted accused is common. Therefore, the same is incapable of separation or segregation. As per the confessional statement of applicant the role of causing strangulation is assigned to applicant himself. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that similarly situate and circumstanced named/charge-sheeted co-accused Amzad Ali @ Suggan has already been enlarged on bail by this Court, since both the accused have been charge-sheeted under the same sections therefore, the case of the present applicant cannot be said to be distinguishable from that of the co-accused so as to deny him bail, the present case is a case of circumstantial evidence therefore there is no eye-witness of the occurrence, complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of parameters laid down in Sharad Birdhichand Sarda (supra), up this stage none of the parameters laid down in aforementioned judgement are satisfied against the applicant, the police report under Section 173 (2) CrPC has already been submitted, therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, in spite of above 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 the applicant during the pendency of trial, judgement of the Apex Court in the case of Sumit Subhashchandra Gangwal and Another Vs. State of Maharashtra and Another 2023 LiveLaw (SC) 373 (paragraph 5), the clean antecedents of the applicant, the period of incarceration undergone, therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail but, without making any comments on the merit of the case, the applicant has made out a case for bail on the ground of parity.

Accordingly, the bail application is allowed.

Let the applicant Taufiq Ahmad, be released on bail in the aforesaid case crime number on his 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.

(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 him 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.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 21.9.2023.

Rks.