High Court
Case Details
Court No. - 76 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21371 of 2021 Applicant :- Ayub Opposite Party :- State of U.P. Counsel for Applicant :- Rajrshi Gupta,Dileep Kumar(Senior Adv.),Rizwan Ahamad Counsel for Opposite Party :- G.A.,Mohammad Aon Hon'ble Rahul Chaturvedi,J. Heard Shri Dileep Kumar, learned Senior Advocate assised by Shri Rajrshi Gupta, learned counsel for the applicant; Mohammad Aon, learned counsel for the informant and Shri Ajay Kumar Sharma, learned A.G.A. for the State. Perused the record. The applicant is facing prosecution prosecution in Session Trial No.234 of 2021, pending in the Court of Additional District & Session Judge, Court No.16, Agra, arising out of Case Crime no.600 of 2020, u/s 302, 120-B, 34, 420, 468, 471 I.P.C., Police Station-New Agra, District-Agra. The prosecution starts rolling, after lodging of F.I.R. by one Nasruddin on 31.10.2020 at 18.39 hours for the incident said to have taken place on 14.30 hours on the same day, against applicant and his brothers Yakub Mohammad and Yusuf. It has been alleged in the F.I.R. that the informant's daughter Mrs Rani was the wife of Yakub Mohammad. It is born out from the record of the case that, the husband and wife are at warring ends and the wife has gone to attend the court. On the fateful day, while she was coming back, she was intercepted by main accused persons Yakub Mohammad and his brothers Yusuf and Ayub at 2.30 hours near Mazar of Noorjahan, they have killed
Legal Reasoning
her by firing from point blank range. On these brief facts, the F.I.R. was registered, naming the applicant as one of the accused. After lodging of the F.I.R., the inquest report was prepared on the same day between 18.30 hours to 19.00 hours. From the inquest report it is clear that, the informant has clearly mentioned that the dead body of the deceased was lying on the road side up to 6.30 and the informant informed the police that her husband Yakub along with two others have eliminated her daughter by giving firearm. From the place of occurrence the police has recovered one empty bullet and empty cartridge of 315 bore. Postmortem of the deceased was conducted on the next date of the incident i.e. 01.11.2020 at 01.15 p.m., containing five firearm injuries over her person, out of which injury no.1, 3 and 4 are wounds of entry and its corresponding wound of exist. All these three injuries are entry wounds on the vital part of the body i.e. over the right ear pinna, right head parietal region and right back side of the chest. All these injuries are containing tattooing and blackening, suggesting that from near proximity all fires were pumped. As per the doctor, cause of death is hemorrhage as a result of firearm injuries.
Legal Reasoning
Learned counsel for the applicant submits that from the perusal of 161 statement of the informant Nasruddin, incorporated in C.D. Parcha No.1, it is abundantly clear that the informant is not an eye-witness to the incident and thus, he could not disclose the name of assailants or could give graphic description of the incident. The I.O. of the case has recorded the statement of Gulfam @ Kullad and Mauseem on 31.10.2020, in which they have stated that on the date of incident they have seen that a burka-clad lady was going. She was intercepted by three persons on the scooty and they have indiscriminately fired upon her. In C.D. Parch No.5 dated 6.11.2015 it is mentioned that the applicant with his brothers Yakub and Yusuf were arrested on the information given by the informer and from their possession the police has recovered the weapon, live cartridges and two Activa scooties used in the commission of offence. It is further submitted by learned counsel for the applicant that there is no independent witness to the said recovery casting a serious doubt about the authenticity and veracity of the alleged recovery. So far as the scooties alleged to have been recovered are concerned, both the scooties are belonging to his brothers and the applicant has no concerned with the same. Annexure-8 contains the statements of Faizan s/o Nasruddin, Smt. Jamila w/o Nasruddin, Umar s/o Yakub and Roshni d/o Nasruddin, which were recorded after considerable delay in C.D. No.8 dated 14.1.2021, in which Smt. Jamila Begum and Umar have given an eye-witness account to the incident. Umar being the most natural witness of the incident without mincing words have indicated that her mother (the deceased) and father was at the warring ends and his father had invited her mother cunningly to Dargah, where his father Yakub and his both Tau (applicant and Yusuf) pumped fires upon her and she died instantly. On this it has been contended by learned counsel for the applicant that these statements were recorded by the I.O. after considerable delay of about two months of the incident and thus the improvement, embellishment and tutoring cannot be ruled out. After concluding the investigation, the police submitted charge sheet u/s 302, 120B, 34, 420, 468, 471 I.P.C. against the accused persons including the applicant and they were put to trial. As mentioned above, the applicant is facing the prosecution in Session Trial No.234 of 2021, which is at advanced stage. Per contra, learned A.G.A. has opposed the bail application and invited attention of the Court to the fact that the applicant is facing prosecution u/s 302, 120-B, 34 I.P.C. along with other sections of fraud. All the three named accused persons are real brothers and it is also submitted that the husband and wife are at the warring ends. During her life time the deceased has initiated number of criminal cases against her husband, which might be the cause of concern to her husband and his all family members including the applicant, under the circumstances, the possibility of eliminating the deceased by all three brothers including the applicant cannot be ignored. Moreover, there is recovery of scooty and the alleged firearm used in the commission of offence from the possession of applicant. There are three firearm wounds of entry which are on the vital part of the body. In addition to this, learned A.G.A. has pointed out that the applicant is having a chequered criminal past of long criminal history of 13 cases to his credit. Though these 13 cases were explained in para-5 of the supplementary affidavit, all are registered in various police stations at Agra. It is true that in all these cases the applicant is enjoying bail, but his criminal antecedents reflects his criminal psyche that he is criminal bent of mind, which cannot be brushed aside. To remain on bail is one aspect of the issue, which at best be considered as mitigating factor, but it cannot be said that the applicant is enjoying unblemished track record. It is further submitted that the trial is at advanced stage and there is every likelihood, that soon after the release of applicant, the witnesses of prosecution might be threatened or win over, which would adversely affect the future prospect of the trial. The applicant is formidable opponent of the prosecution. I have heard rival submissions made at the Bar and perused the records of the case in the light of the same. The applicant is the real brother of Mohammad Yakub, who is the husband of the deceased. Both the husband and wife were having matrimonial discord and complete incompatibility between them. Even onthe fateful day, the deceased-wife went to the court to attend proceeding/date in a case and while coming back, she was eliminated by all three named accused persons. In this ghastly act it clearly indicates that the named accused persons, who are real brothers, would not permit the prosecution to proceed in a smooth way, that's way they have eliminated the root cause i.e. Ms. Rani. The applicant is named in the F.I.R. which was got registered promptly by the informant. The deceased has sustained three gun shot injuries on the vital part of the body which contain blackening and tattooing. The witness Umar has given a graphic description of the incident. Mere laxity on the part of the I.O. in recording the statements at belated stage would not going to absolve the accused from the offence committed and make his statement wholly untrustworthy. Taking into account the totality of circumstances and that the applicant is named from the very inception in the F.I.R. and his past credentials, his role in commission of offence and the recovery from his possession, the nature of offence and its severity, I am not inclined to exercise my discretionary power u/s 439 Cr.P.C. in favour of applicant. Accordingly, the bail application stands REJECTED. However, since the trial is at advanced stage, it is expected from the learned trial Judge to make all necessary endeavours to conclude the trial on priority basis and would try to conclude the same by 31st August, 2022, provided the applicant would furnish a copy of this order to the concerned trial court within four weeks from today and readily co-operate in the conclusion of trial within the time specified above. It is clarified that the observations made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case. Order Date :- 27.1.2022 Abhishek Sri/M. Kumar Digitally signed by MANISH KUMAR Date: 2022.02.14 15:00:12 IST Reason: Location: High Court of Judicature at Allahabad