Shahid v. State Of U.P. And Another

of Sri Dhananjay Singh and Sri Surya Prakash Maurya, Advocates have been shown as counsel for opposite party no.2. Thus, with the aid and help of learned A.G.A., the Court is proposing to decide all the three appeals on merit as the same are pending since 2019. Pleadings have been exchanged between the parties. Counter affidavit has been filed by the State. Learned counsel for the appellants do not propose to file any rejoinder affidavit and want to argue the case on merits. Since all the appellants are facing prosecution in Case Crime No.502 of 2018, under Sections 302, 147 I.P.C. and Section 3(2) V of SC/ST Act and are languishing in jail from the respective dates mentioned above as all of them are facing the prosecution of the same case crime number and thus for the sake of brevity all the three appeals are being jointly decided by a common order. Heard learned counsel for the appellants as well as learned A.G.A for the State and perused the record.

It is contended by learned counsels for the appellants that the FIR was lodged by the brother of the deceased Rajesh Kumar against one Rafiq @ Rafiya and one unknown person with the allegation that informant’s brother Krishnapal @ Munna was an unmarried man and was nurturing illicit relationship with Rafiq’s wife. On 26.09.2018 the informant was given information that house of the deceased remained unlock for the last two days. After breaking in the doors informant have entered into the house and have seen the necked body of his brother was lying over the floor. It is also mentioned in the FIR that Rafiq and his brothers might have committed this offence. During the course of investigation the police has caught hold of the named accused person Rafiq and recorded his statement under Section 161 Cr.P.C. The main assailant Rafiq has in a no uncertain terms has confessed his guilt before the police.

He states that he got married with one Pyar Bano about 10-11 years back and the deceased was residing in his neighborhood. The deceased has developed illicit relationship with his wife and deceased was a Government servant, a conductor in Roadways and he maintained this relationship which was an open secret. Even after changing the place of residence, they maintained their relationship and not only this his wife has given a birth to a baby girl, aged about 6-7 years. By way of retaliation he has hached a conspiracy to eliminate Krishnapal @ Munna and with the help and aid of Israr, Gurdeep, Ashik and Shahid. All of them started drinking and when they have made the deceased dead drunk, then all of them jumped upon the deceased and it was Mohd. Rafiq had given a deadly blow over the deceased. Not only this, thereafter they have strangulated the neck of the deceased and done to his death. This is a clear cut case of confession by main assailant before the police and should be taken with pinch of salt.

The post mortem report indicates that the deceased has sustained six injuries over his person and the cause of death as per doctor is ante mortem smothering. Learned counsels for the appellants state that appellants Ashik, Shahid and Israr Husain has got no intention or role to play in this episode. From the confessional statement of Mohd. Rafiq @ Rafiya it is clear that he was having heart burns towards the deceased on account of that he was nurturing illicit relationship with his wife and that is why he has planned to eliminate him. The four prosecution witnesses have been examined so far and none of the witnesses have attributed any specific to the aforesaid appellants. The only evidence is that while retracing from the place of occurrence a witnesses has seen these appellants from the place of occurrence. It cannot be certain that any active role has been attributed to them and commission of the offence.

All the appellants are languishing in jail since 2018 and 2019, respectively and the trial is not likely to conclude in near future. The appellants have got no criminal antecedent to their credit. In such circumstances the appellants be released on bail. Learned A.G.A. has refuted the submission made by learned counsel for the appellant but could not dispute that main role of assault is assigned to main accused Rafiq @ Rafiya and there is no eye witness of the said offence. The submission made by learned counsel for the appellants, prima facie, is quite appealing and convincing for the purpose of bail only. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties, taking into account the manner and mode of the offence and taking into account the generality of allegation, I am of the view that the appellant has made out a case for bail.

Let the appellants- Shahid, Ashik and Israr Husain, be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable 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 APPELLANTS WOULD FULLY COOPERATE IN THE CONCLUSION OF TRIAL WITHIN ONE YEAR AND ANY TEMPERING OR WILLING TACTICS ON THE PART OF THE APPELLANT TO DELAY THE TRIAL WOULD WARRANT THE AUTOMATIC CANCELLATION OF BAIL. (ii) THE APPELLANTS SHALL FILE AN UNDERTAKING TO THE EFFECT THAT THEY 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. (iii) THE APPELLANTS SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH THEIR COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST THEM UNDER SECTION 229-A IPC. (iv) IN CASE, THE APPELLANTS MISUSE THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE THEIR PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPELLANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST THEM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (v) THE APPELLANTS 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 APPELLANTS 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 THEM IN ACCORDANCE WITH LAW. However, it is made clear that any willful violation of above conditions by the appellants, shall have serious repercussion on his bail so granted by this court. Accordingly, all the three appeals succeed and the same stand allowed. Respective impugned orders dated 01.03.2019 and

03.01.2019 passed by Additional Session Judge-II/ Special Judge, SC/ST Act, Bareilly in Case Crime no.502 of 2018, under Sections 302, 147 I.P.C. and Section 3(2) V of SC/ST Act, Police Station- Cantt., District- Bareilly, are hereby set aside. Order Date :- 9.3.2022 Abhishek Singh SINGH Reason: Location: High Court of Judicature at Allahabad