Court No. - 66 v. State of U.P) (ii) Criminal Misc. Bail Application No. 978 of 2022

"Heard Mr. K.A. Srivastava, learned counsel for applicant and learned A.G.A. for State who are connected virtually. At the very outset, learned A.G.A. submits that following bail applications filed by co-accused are already pending before this Court. (i) Criminal Misc. Bail Application No. 977 of 2022 (Farhan Vs. State of U.P) (ii) Criminal Misc. Bail Application No. 978 of 2022 (Safwan Vs. State of U.P) (iii) Criminal Misc. Bail Application No. 18915 of 2021 (Mohd Arif @ Munna Vs. State of U.P) (iv) Criminal Misc. Bail Application No. 32896 of 2021 (Danish Vs. State of U.P) In view of above, connect aforementioned criminal misc. bail applications along with this application for bail. Matter shall reappear as fresh on 28.2.2022 along with connected matters."

5. Pursuant to above order dated 27.01.2022 all the aforementioned bail applications have been listed together. Since all the above mentioned bail applications arise out of the same case crime number, therefore, they have been heard together and are being disposed of finally by a common order.

6. Record shows that in respect of an incident which is alleged to have occurred on 12.10.2020 a prompt FIR dated 12.10.2020 was lodged by first informant, Abutalha and was registered as Case Crime No.0185 of 2020, under Sections 302, 307, 147, 148, 149, 506, 120-B IPC, Police Station Nizamabad, District Azamgarh. In the aforesaid FIR seven persons, namely Mohd Arif @ Munna, Bahajuddin, Wasif, Jibran, Farhan, Safwan and Danish have been nominated as named accused.

7. In the FIR giving rise to this application for bail the gravaman of the allegations is to the effect that on 12.10.2020 at around 11:00 a.m. named accused committed criminality upon Asmar (nephew of first informant), Kazim and Mushir whereby they sustained injuries. Injured Asmar succumbed to the injuries sustained by him while he was being carried out to the hospital.

8. Subsequent to the aforementioned FIR investigating officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. Injured Mushir was taken to District Hospital, Azamgarh where he was given immediate treatment. Thereafter he was medically examined. His medico legal report is on record as annexure-6 to the affidavit filed in support of the bail application. As per his medico legal report he sustained following injuries:- "1. Diagnosis - Alleged H/o Stab wound with stitched wound at Azamgarh (Distt. Hospital) ....G.C...

2. Chief complaint - Sever paid over wound 8 ..... restless."

9. Thereafter inquest of the body of the deceased was conducted on 12.10.2020. In the opinion of panch witnesses, nature of death of the deceased was homicidal. The postmortem of the body of the deceased was also conducted on the same day. In the opinion of the autopsy surgeon, cause of death of deceased was hemorrhagic shock due to antemortem neck injury. The autopsy surgeon further found following antemortem injuries on the body of the deceased:- "1. Penetrating injuries - 4cm x 2cm x Neck deep over lt. side of neck just above the medial end of lt. clavicle.

2. Penetrating injuries - 4cm x 2cm 2 Pentoral cavity deep over lt. side of abdomen 11cm from umbilical."

10. During course of investigation, investigating officer also examined the injured, Mushir wherein the aforesaid witness has nominated Khalid as the author of the injuries sustained by him.

11. Investigating officer on the basis of the statements of witnesses examined under Section 161 CrPC, as also other material collected by him during course of investigating, opined to submit a chargesheet. Accordingly, investigating officer has submitted the chargesheet dated 01.01.2021 whereby all the named accused have been chargesheeted. The details of the same are as under:- "1. Khalid - under Sections 302/34, 307, 147, 148, 149, 506, 120-B IPC and Sections 4/25 Arms Act.

2. Mohd. Arif @ Munna - under Sections 302/120 IPC.

3. Bahazuddeen, Jibran, Farhan, Safwan and Danish - under Sections 302/34, 307, 147, 148, 149, 506, 120 ICP and Sections 4/25 Arms Act.

4. Wasif - Juvenile."

12. At the very outset learned counsel for the applicants submit that co-accused Bahazudeen has been enlarged on bail by this Court vide order dated 25.11.2021 passed in Criminal Misc. Bail Application No.8674 of 2021. For ready reference the same is reproduced herein under:- "Heard learned counsel for the applicant and the learned A.G.A. for the State. Argument on behalf of the applicant has been extended to the effect that in this case, applicant is not named in the FIR. He further submits that the applicant is innocent and has been falsely implicated in this case. He added that applicant has no concern with the alleged incident and he has been roped in, in this case by the informant only for harassment. The main role of causing assault has been attributed co- accused Wasif. In case, the applicant is admitted to bail, there is no possibility of absconding or misusing the liberty of bail. The applicant is languishing in jail since

14.10.2020 in the present case. Criminal history has been satisfactorily explained by the applicant in the supplementary affidavit. The learned A.G.A. has vehemently opposed the prayer. Considering the rival submissions and the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, without expressing any opinion on merit of the case, this bail application is allowed. Let the applicant- Bahazudeen- involved in case crime no.185 of 2020, under Sections 147, 148, 149, 302, 307, 506, 120-B, 34 IPC, Police Station Nizamabad, district Azamgarh be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned."

13. Thereafter co-accused Safwan has been enlarged on bail by this Court vide order dated 31.01.2022 passed in Criminal Misc. Bail Application No.978 of 2022 which reads as under:- "Heard learned counsel for the applicant, Sri Salman Ahmad, learned counsel for the informant and the learned A.G.A. for the State. Argument on behalf of the applicant has been extended to the effect that in this case, applicant is innocent and has been falsely implicated in this case. The applicant has no role to play in the commission of the offence. He added that so far as the incident is concerned that is stated to have taken place on 12.10.2020 at 11.00 A.M. regarding which a named FIR was lodged against seven persons including the applicant. Now, the contention is that in so far as the entire FIR and the statement of one injured Mushir Ahmad is concerned, that is very much indicative of fact that in this case in so far as the point of injury being caused on the body of the deceased is concerned, the same was caused by the action of Aasif who dealt knife blow upon two persons due to which they suffered injuries and died and it is no case of the prosecution that the applicant ever participated in the offence in the manner and style that he caused assault on the deceased and that being so, the applicant claims parity with the another co- accused Bahazudden, who has already been admitted to bail by this Court on 25.11.2021 in Criminal Misc. Bail Application No.8674 of 2021, copy whereof has been annexed as Annexure No.11 to the affidavit filed in support of this bail application. In case, the applicant is admitted to bail, there is no possibility of absconding or misusing the liberty of bail. The applicant has no criminal history and is languishing in jail since 14.10.2020 in the present case. The learned A.G.A. as well as learned counsel for the informant have vehemently opposed the bail prayer of the applicant and submit that the very occurrence as taken place while the applicant too was present along with the other and the very language of the FIR is itself indicative that all are participating in the commission of the offence, however, they have not been disputed the statement of the injured whose statement has been brought on record on page no.72 of the bail application. Considering the rival submissions and the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, without expressing any opinion on merit of the case, this bail application is allowed. Let the applicant- Safwan involved in case crime no.185 of 2020, under Sections 147, 148, 149, 302, 307, 506, 120B, 34 IPC, Police Station Nizamabad, district Azamgarh be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned. It is made clear that advantage of this bail order shall not go other co- accused."

14. Learned counsel for the applicants jointly submit that though the applicants are named and chargesheeted accused but they are innocent. The allegations made in the FIR qua the present applicants are false and concocted. As such, applicants are being falsely prosecuted in the aforementioned case crime number. It is then contended that the deceased had died on account of injuries sustained by him. However, as per the prosecution story as unfolded in the FIR the author of the injuries sustained by the deceased is Wasif. It is then contended that the injured Mushir in his statement under Section 161 CrPC before the investigating officer has nominated accused Khalid as author of the injuries sustained by him. It is then jointly urged that the applicants are not the author of the injuries sustained by the deceased as well as the injured. On the aforesaid premise learned counsel for the applicants contend that since the case of the present applicants is different from that of co-accused, Wasif and Khalid, they are liable to be enlarged on bail. Learned counsel for the applicants then submit that the case of the present applicants is similar and identical to that of the co-accused, Bahazudeen and Safwan who have already been enlarged on bail by this Court. There is no such distinguishing feature on the basis of which case of present applicants can be distinguished from that of aforesaid co- accused so as to deny bail to present applicants. As such, applicants are liable to be enlarged on bail. It is further contended that applicant, Jibran has criminal history of two cases which has been explained in paragraph-26/27 of the affidavit filed in support of the bail application of the applicant, Jibran. It is next contended that applicant, Farhan also has criminal history of two cases which has been explained in paragraph-26/27 of the affidavit filed in support of the bail application of the applicant, Farhan. It is contended by Mr. Shivendra Raj Singhal, learned counsel that the applicant, Mohd. Arif @ Munna has criminal history of seven cases prior to lodging of the aforesaid FIR giving rise to his application for bail and one subsequent to the FIR giving rise to his application for bail. However, in the seven cases preceding the present case, he has already been enlarged on bail. He further submits that at the time of occurrence the applicant was in judicial custody. Categorical averment regarding above have been made in paragraph-10 of the bail application and first supplementary affidavit dated 05.07.2021 and also in the second supplementary affidavit filed today in Court. Further, it is contended on behalf the applicant, Danish that he has no criminal history. The categorical averment to that effect has been made in paragraph-22 of the affidavit filed in support of his bail application. It is then contended that applicants are in jail since 09.09.2020, 14.10.2020 and 17.10.2020. As such, they have undergone sufficient period of incarceration. It is lastly contended that since the chargesheet has already been submitted against the applicant, the evidence sought to be relied upon has been crystallized. As such, custodial arrest of the applicants is not absolutely necessary during the course of trial. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall cooperate with the trial.

15. Per contra, the learned AGA as well as the learned counsel for first informant have opposed the present applications for bail. Learned AGA contends that applicants are named as well as chargesheeted accused, therefore, no indulgence be granted by this Court in their favour. Learned AGA further contends that case of the present applicants cannot be bifurcated in view of their implication under Section 120-B/34 IPC. However, he could not dispute the fact that the co-accused, who are similarly situate like present applicants, have already been enlarged on bail and no such ground exists so as to distinguish the case of the present applicants to deny them bail on the ground of parity.

16. Having heard learned counsel for applicants, the learned AGA for State and upon consideration of evidence on record, accusations made as well as complicity of applicants but without expressing any opinion on merits of the case, applicants have made out a case for bail.

17. Accordingly, present bail applications are allowed.

18. Let the applicants, Jibran, Farhan, Mohd Arif @ Munna and Danish involved in aforesaid case crime number be released on bail 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) Applicants will not tamper with prosecution evidence. (ii) Applicants will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever. (iii) Applicants will not indulge in any unlawful activities. (iv) Applicants will not misuse the liberty of bail in any manner whatsoever.

19. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicants and send them to prison. Order Date :- 14.3.2022 Shahroz Reason: Location: High Court of Judicature at Allahabad