Criminal Appeal No. 3794 of 2024 · High Court

(Order on C.M. Application No. 1 of 2024- Dilshad) Application of First Bail (Order on C.M. Application No. 1 of 2024- First Irshad) (Order on C.M. Application No. 1 of 2024- First Bail Application of Irfan @ Babu) Application of Bail

1. All the aforesaid bail applications arise out of same Sessions Trial, as such, all the applications are being disposed of by a common order. Heard

2. appellants/applicants, learned A.G.A. for the State and perused the record. learned counsel

3. The instant bail applications have been moved by the appellants-applicants/Dilshad, Irshad & Irfan @ Babu, who are convicts of Sessions Trial Nos. 34 of 2014 and Sessions Trial No.35 of 2014, arising out of Case Crime No. 112 of 2012 and Case Crime No. 141 of 2012, under Sections 302/34, 201 and 120-B of the I.P.C. and Section 3/25 of the Arms Act, Police Station Kotwali Deva, District Barabanki and sentenced for maximum term of life imprisonment pertaining to Section 302/120-B I.P.C. with fine stipulation, vide judgment and order dated 23.11.2024 passed by learned Additional Sessions Judge, Court No.2, Barabanki, praying to release them on bail, during pendency of instant appeals.

4. Learned counsel for the appellants/applicants while pressing the bail applications submits that the appellants/applicants have been falsely implicated in this case and the trial court has committed manifest error in appreciating the evidence available on record and has convicted the appellants on the basis of no evidence.

5. Factual matrix of the prosecution story is that the first information report was lodged on 5.5.2012, in Police Station, Kotwali Deva and it is alleged that the nephew of the informant went out at about 9:30 pm while saying that he will be coming within ten minutes, but when he did not come back, even after passing of 3-4 hours, the family members started searching him, but there was no whereabouts of him. It is further alleged that on the next day, he was informed that the dead body of the deceased, namely, Sohail Ahmad is lying near canal at Mamapur and the informant went over and saw the dead body of the deceased and observed injuries on head & neck which were bleeding.

6. It is contended that there is no ocular witness of the incident and even there is no evidence of last seen against the applicants-appellants. He also submits that P.W. 2 stated that on 4.5.2012 at about 9:00 pm, the deceased was lastly seen with one Arif and his friends, but the Investigating Officer did not collect any evidence against Arif and even the trial court has also ignored the testimony of the P.W. 2 regarding the last seen evidence against Arif.

7. The counsel for the appellants-applicants has also submitted that it is the case of the prosecution that the dead body was lying nearby a canal at Mamapur and on the information received from the Police, the informant visited and except apart the aforesaid, there is no circumstantial or concrete evidence against the appellants- applicants that they were involved in committing the offence.

8. Further argued that the Investigating Officer for showing the good work has tried to show that he has opened the mystery of blind murder case without collecting credible evidence against the appellants-applicants as there is neither circumstantial evidence nor the last seen evidence against them. He added that the weapon which has been shown to be recovered by the Investigating Officer, have never been sent for Ballistic or F.S.L. examination and no cartridge has been recovered. Concluding his arguments, he submits that there are material contradictions in the evidence of prosecution witnesses of the fact and their statements do not inspire and confidence and further those are not reliable witnesses.

9. Next added that the appellants/applicants were on bail during trial and they have no previous criminal antecedent, therefore, submission is that the appellants-applicants may be enlarged on bail.

10. On the other hand, the learned AGA has opposed the contentions aforesaid and submits that after thorough investigation and recording the statement of the witnesses under section 161 of Cr.P.C., the Investigating Officer reaches to the conclusion that appellants-applicants were involved in committing offence and therefore, the chargesheet was filed against them and after deposing the testimony of the prosecution witnesses, the trial court has rightly convicted the appellants-applicants. He added that the whole circumstances are very well channelised by the prosecution and while thoroughly discussing the statement of the witnesses and evidences, the trial court has passed the order wherein, the involvement of the appellants-applicants in committing offence have been found proved, therefore, submission is that the appellants- applicants are not entitled for any relief.

11. We have considered the submissions of counsels for the parties, it is evident that the appellants-applicants were seen with deceased, a day prior to the date of the incident, whereas, the person who was lastly seen is Arif though, he was neither produced nor examined, therefore, it seems that this is neither a case of last seen evidence nor of circumstantial evidence and there is even not a single ocular witness of the incident.

12. From perusal of judgment and order of the learned trial court, the chain of the incident is missing. We have also noticed that though, the firearm weapon is recovered, but the cartridge are admittedly not recovered and as per the injury report there are incise wound over the body of the deceased, but there is no finding of the trial court on the aforesaid discrepancies.

13. It is also noticeable that the appellants- applicants were on bail during trial and they did not misuse the liberty of bail and they have no previous criminal history and further, they have undertaken that if they are being released on bail, they will not misuse the liberty during pendency of the appeal and they further undertake that they will cooperate in the hearing of the appeal and would never abscond.

14. Considering all the facts and circumstances of the case, we find force in the submissions made by learned counsel for the appellants/applicants as also the fact that appellants/applicants have no criminal history and they have remained on bail during the trial and not misused the liberty granted to them. In result, the bail applications of the

15. appellants/applicants are allowed. Let the appellants-applicants-

16. Dilshad, Irshad & Irfan @ Babu, involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The fine imposed by the Trial Court shall be deposited with the Trial Court by the appellants/applicants within three months from their actual release from prison, if the same has not been earlier deposited. (ii) The appellants/applicants shall cooperate in the early disposal of appeal without seeking unnecessary adjournment. (iii) The appellants/applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.

17. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

18. The trial court shall transmit the bail bonds submitted by the appellants/applicants to this Court, forthwith. (Order on Appeal) The office is directed to prepare the paper-book. List these Appeals in the month of July, 2025, for hearing. Order Date :- 11.4.2025 Mayank

(Order on C.M. Application No. 1 of 2024- Dilshad) Application of First Bail (Order on C.M. Application No. 1 of 2024- First Irshad) (Order on C.M. Application No. 1 of 2024- First Bail Application of Irfan @ Babu) Application of Bail

1. All the aforesaid bail applications arise out of same Sessions Trial, as such, all the applications are being disposed of by a common order. Heard

2. appellants/applicants, learned A.G.A. for the State and perused the record. learned counsel

3. The instant bail applications have been moved by the appellants-applicants/Dilshad, Irshad & Irfan @ Babu, who are convicts of Sessions Trial Nos. 34 of 2014 and Sessions Trial No.35 of 2014, arising out of Case Crime No. 112 of 2012 and Case Crime No. 141 of 2012, under Sections 302/34, 201 and 120-B of the I.P.C. and Section 3/25 of the Arms Act, Police Station Kotwali Deva, District Barabanki and sentenced for maximum term of life imprisonment pertaining to Section 302/120-B I.P.C. with fine stipulation, vide judgment and order dated 23.11.2024 passed by learned Additional Sessions Judge, Court No.2, Barabanki, praying to release them on bail, during pendency of instant appeals.

4. Learned counsel for the appellants/applicants while pressing the bail applications submits that the appellants/applicants have been falsely implicated in this case and the trial court has committed manifest error in appreciating the evidence available on record and has convicted the appellants on the basis of no evidence.

5. Factual matrix of the prosecution story is that the first information report was lodged on 5.5.2012, in Police Station, Kotwali Deva and it is alleged that the nephew of the informant went out at about 9:30 pm while saying that he will be coming within ten minutes, but when he did not come back, even after passing of 3-4 hours, the family members started searching him, but there was no whereabouts of him. It is further alleged that on the next day, he was informed that the dead body of the deceased, namely, Sohail Ahmad is lying near canal at Mamapur and the informant went over and saw the dead body of the deceased and observed injuries on head & neck which were bleeding.

6. It is contended that there is no ocular witness of the incident and even there is no evidence of last seen against the applicants-appellants. He also submits that P.W. 2 stated that on 4.5.2012 at about 9:00 pm, the deceased was lastly seen with one Arif and his friends, but the Investigating Officer did not collect any evidence against Arif and even the trial court has also ignored the testimony of the P.W. 2 regarding the last seen evidence against Arif.

7. The counsel for the appellants-applicants has also submitted that it is the case of the prosecution that the dead body was lying nearby a canal at Mamapur and on the information received from the Police, the informant visited and except apart the aforesaid, there is no circumstantial or concrete evidence against the appellants- applicants that they were involved in committing the offence.

8. Further argued that the Investigating Officer for showing the good work has tried to show that he has opened the mystery of blind murder case without collecting credible evidence against the appellants-applicants as there is neither circumstantial evidence nor the last seen evidence against them. He added that the weapon which has been shown to be recovered by the Investigating Officer, have never been sent for Ballistic or F.S.L. examination and no cartridge has been recovered. Concluding his arguments, he submits that there are material contradictions in the evidence of prosecution witnesses of the fact and their statements do not inspire and confidence and further those are not reliable witnesses.

9. Next added that the appellants/applicants were on bail during trial and they have no previous criminal antecedent, therefore, submission is that the appellants-applicants may be enlarged on bail.

10. On the other hand, the learned AGA has opposed the contentions aforesaid and submits that after thorough investigation and recording the statement of the witnesses under section 161 of Cr.P.C., the Investigating Officer reaches to the conclusion that appellants-applicants were involved in committing offence and therefore, the chargesheet was filed against them and after deposing the testimony of the prosecution witnesses, the trial court has rightly convicted the appellants-applicants. He added that the whole circumstances are very well channelised by the prosecution and while thoroughly discussing the statement of the witnesses and evidences, the trial court has passed the order wherein, the involvement of the appellants-applicants in committing offence have been found proved, therefore, submission is that the appellants- applicants are not entitled for any relief.

11. We have considered the submissions of counsels for the parties, it is evident that the appellants-applicants were seen with deceased, a day prior to the date of the incident, whereas, the person who was lastly seen is Arif though, he was neither produced nor examined, therefore, it seems that this is neither a case of last seen evidence nor of circumstantial evidence and there is even not a single ocular witness of the incident.

12. From perusal of judgment and order of the learned trial court, the chain of the incident is missing. We have also noticed that though, the firearm weapon is recovered, but the cartridge are admittedly not recovered and as per the injury report there are incise wound over the body of the deceased, but there is no finding of the trial court on the aforesaid discrepancies.

13. It is also noticeable that the appellants- applicants were on bail during trial and they did not misuse the liberty of bail and they have no previous criminal history and further, they have undertaken that if they are being released on bail, they will not misuse the liberty during pendency of the appeal and they further undertake that they will cooperate in the hearing of the appeal and would never abscond.

14. Considering all the facts and circumstances of the case, we find force in the submissions made by learned counsel for the appellants/applicants as also the fact that appellants/applicants have no criminal history and they have remained on bail during the trial and not misused the liberty granted to them. In result, the bail applications of the

15. appellants/applicants are allowed. Let the appellants-applicants-

16. Dilshad, Irshad & Irfan @ Babu, involved in aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:- (i) The fine imposed by the Trial Court shall be deposited with the Trial Court by the appellants/applicants within three months from their actual release from prison, if the same has not been earlier deposited. (ii) The appellants/applicants shall cooperate in the early disposal of appeal without seeking unnecessary adjournment. (iii) The appellants/applicants shall not indulge in any criminal activity or commission of any crime after being released on bail.

17. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

18. The trial court shall transmit the bail bonds submitted by the appellants/applicants to this Court, forthwith. (Order on Appeal) The office is directed to prepare the paper-book. List these Appeals in the month of July, 2025, for hearing. Order Date :- 11.4.2025 Mayank