High Court · 2025

2. Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant, Sri V.D. Ojha, learned counsel for the State and perused the material on record.

3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Bhoora @ Sajid, seeking enlargement on bail during trial in connection with Case Crime No.179/2020 (S.C. No.100/2022), under Sections 302, 504 and 34 IPC, Police Station Bargaon, District Saharanpur.

4. This is a second bail application. The first bail application of the applicant was rejected vide order dated 18.8.2023 passed by this Court passed in Criminal Misc. Bail Application No.44545 of 2021 for want of prosecution.

5. The FIR of the matter was lodged on 4.5.2020 by Bhoora, S/o Salamuddin against the applicant and three other persons alleging therein that on 4.5.2020 at about 5 p.m. his grand-son Ahsan, S/o Farooq was sitting on the platform outside the house wherein the accused persons came and started abusing him on which Ahsan told them to stop and there was a fight between them on which Majid @ Majjo and Sakib caught-hold of the hands of Ahsan, Aas Mohd. exhorted on which Bhoora, the present applicant assaulted him with a knife on his chest and they ran away due to which his grand-son received injury. He was taken to the hospital where the doctors declared him dead. A report be lodged and action be taken.

6. The postmortem examination of the deceased Ahsan was conducted in which the doctor found penetrating wound on the thoracic cavity on the joint of left side of chest, a stab wound on the lateral aspect of right side of chest and an abrasion on the lateral aspect of right elbow joint. The pleura and the pericardium were lacerated, the heart wall was found punctured. The cause of death was opined as due to shock and hemorrhage as a result of ante-mortem injuries.

7. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the trial in the present matter has started in which Bhoora, the first informant has been examined as P.W.1, Ahsan, S/o Idrish has been examined as P.W.2, Rao Shaeem @ Salim has been examined as P.W.3 and Shamshad has been examined as P.W.4 and all the four witnesses have not supported the prosecution case and have been declared hostile. The statements of the said witnesses have been placed before the Court which are annexed as S.A- 13, 14 and 16 to the supplementary affidavit dated 12.3.2025. It is further argued while placing the statement of Maroof who was examined as P.W.5 that the said witness is resident of same locality who also did not support the prosecution case and has been declared hostile, copy of the said statement has been placed before the Court as S.A-20 to the supplementary affidavit dated 12.3.2025. It is submitted that as such the implication of the applicant in the present case is false and without any basis. It is further submitted that Usman also resident of the same locality was examined as P.W.6 who also did not support the prosecution case and has been declared hostile, copy of the said statement has been placed before the Court as S.A-21 to the supplementary affidavit dated 12.3.2025. It is argued that the implication of the applicant in the present case is without any credible evidence. After the implication of the applicant in the present case, he has been implicated in a case under the Gangsters Act. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit in support of bail application. The applicant is in jail since 5.5.2020.

8. Per contra learned counsel for the State opposed the prayer for bail.

9. After hearing the counsel for the parties and perusing the record, it is evident that the trial in the matter has started in which six prosecution witnesses have been examined who have not supported the prosecution case and have been declared hostile.

10. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

11. Let the applicant-Bhoora @ Sajid, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant 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) 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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. (v) 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

12. 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 and send the applicant to prison.

13. The bail application is allowed.

14. Pending application(s), if any, shall stand disposed of. (Samit Gopal, J.) Order Date :- 9.5.2025 Gaurav Kuls GAURAV KULSHRESTHA High Court of Judicature at Allahabad

2. Heard Sri Jitendra Prasad Mishra, learned counsel for the applicant, Sri V.D. Ojha, learned counsel for the State and perused the material on record.

3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Bhoora @ Sajid, seeking enlargement on bail during trial in connection with Case Crime No.179/2020 (S.C. No.100/2022), under Sections 302, 504 and 34 IPC, Police Station Bargaon, District Saharanpur.

4. This is a second bail application. The first bail application of the applicant was rejected vide order dated 18.8.2023 passed by this Court passed in Criminal Misc. Bail Application No.44545 of 2021 for want of prosecution.

5. The FIR of the matter was lodged on 4.5.2020 by Bhoora, S/o Salamuddin against the applicant and three other persons alleging therein that on 4.5.2020 at about 5 p.m. his grand-son Ahsan, S/o Farooq was sitting on the platform outside the house wherein the accused persons came and started abusing him on which Ahsan told them to stop and there was a fight between them on which Majid @ Majjo and Sakib caught-hold of the hands of Ahsan, Aas Mohd. exhorted on which Bhoora, the present applicant assaulted him with a knife on his chest and they ran away due to which his grand-son received injury. He was taken to the hospital where the doctors declared him dead. A report be lodged and action be taken.

6. The postmortem examination of the deceased Ahsan was conducted in which the doctor found penetrating wound on the thoracic cavity on the joint of left side of chest, a stab wound on the lateral aspect of right side of chest and an abrasion on the lateral aspect of right elbow joint. The pleura and the pericardium were lacerated, the heart wall was found punctured. The cause of death was opined as due to shock and hemorrhage as a result of ante-mortem injuries.

7. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the trial in the present matter has started in which Bhoora, the first informant has been examined as P.W.1, Ahsan, S/o Idrish has been examined as P.W.2, Rao Shaeem @ Salim has been examined as P.W.3 and Shamshad has been examined as P.W.4 and all the four witnesses have not supported the prosecution case and have been declared hostile. The statements of the said witnesses have been placed before the Court which are annexed as S.A- 13, 14 and 16 to the supplementary affidavit dated 12.3.2025. It is further argued while placing the statement of Maroof who was examined as P.W.5 that the said witness is resident of same locality who also did not support the prosecution case and has been declared hostile, copy of the said statement has been placed before the Court as S.A-20 to the supplementary affidavit dated 12.3.2025. It is submitted that as such the implication of the applicant in the present case is false and without any basis. It is further submitted that Usman also resident of the same locality was examined as P.W.6 who also did not support the prosecution case and has been declared hostile, copy of the said statement has been placed before the Court as S.A-21 to the supplementary affidavit dated 12.3.2025. It is argued that the implication of the applicant in the present case is without any credible evidence. After the implication of the applicant in the present case, he has been implicated in a case under the Gangsters Act. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit in support of bail application. The applicant is in jail since 5.5.2020.

8. Per contra learned counsel for the State opposed the prayer for bail.

9. After hearing the counsel for the parties and perusing the record, it is evident that the trial in the matter has started in which six prosecution witnesses have been examined who have not supported the prosecution case and have been declared hostile.

10. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

11. Let the applicant-Bhoora @ Sajid, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever. ii) The applicant 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) 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. (iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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. (v) 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 and the trial court may proceed against him under Section 229-A IPC. (vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

12. 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 and send the applicant to prison.

13. The bail application is allowed.

14. Pending application(s), if any, shall stand disposed of. (Samit Gopal, J.) Order Date :- 9.5.2025 Gaurav Kuls GAURAV KULSHRESTHA High Court of Judicature at Allahabad