High Court · 2025

1. Heard learned counsel for the applicant, learned AGA for the State as well as Shri Desh Ratan Mishra, learned counsel for the informant/ complainant and perused the record

2. This is the second bail application moved on behalf of the applicant- Rajau @ Shahnoor Husain for grant of bail, in Case Crime No. 302/2022, under Section 302 IPC, Police Station Kotwali Dehat, District Bahraich, during trial, as his first bail application has not found favour by this Bench and while rejecting the first bail application of the applicant thought he same was rejected but it was simultaneously provided that if the prosecution witnesses, Jawwad, Haseeb Ali and Munsharif are examined before the trial court, even before the stipulated period of 08 months the applicant may renew his prayer for bail before this Court, in this background this second bail application has been filed.

3. Learned counsel for the applicant submits that only on the basis of suspicion and apprehension the applicant has been involved in this case, he was not named in the FIR and after may days of the incident the Investigating Officer appears to have procured two witnesses, namely, Jawwad and Haseeb Ali who claimed to have seen the applicant and other two persons going towards the premises occupied by the two old aged persons and thereafter another witness, namely, Munsharif was procured to state that the accused persons including the applicant has made confession before him of commission of the offence.

4. It is vehemently submitted that two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad who were/are the star witnesses of the alleged crime as according to the prosecution they have seen the applicant and other accused persons going towards the house where the deceased persons were found dead have been examined before the trial court as P.W.5 and P.W.6 and both these witnesses have not supported the case of the prosecution and were declared hostile.

5. It is vehemently submitted that that though the witness Munsharif who has been testified before the trial court as P.W.4 has stated that the accused persons including the applicant has confessed their guilt before him but his evidence is not of any value as the same w as dependent on the testimony of the two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad.

6. Elaborating further it is submitted that the case of the prosecution is that after being seen by P.W.5- Haseeb Ali and P.W.6- Jawwad allegedly going towards the house of the two deceased persons the police was on a hunt against the applicant and other two accused persons and in this back drop they approached the P.W.4- Munsharif and confessed their guilt before him and when the link evidence namely, P.W.5- Haseeb Ali and P.W.6- Jawwad is removed there would be a vacuum in the prosecution story, casting the testimony of Munsharif is highly doubtful.

7. It is also submitted that there is material change in the facts and circumstances of the case since rejection of the first bail application of the applicant and though the bail application of one of the co-accused Sonu @ Sameer has been rejected by a Coordinate Bench of this Court but the case of the applicant is on better footing than him, as the recovery of spade and clothes are shown to have been recovered on the pointing of the co- accused Sonu @ Sameer. The applicant is in jail in this case since 18.07.2022. The conclusion of trial would take some time to conclude and having regard to the evidence available before the trial court, the conviction of the applicant is a remote possibility. He is not having any criminal history either.

8. Learned A.G.A. on the other hand opposes the prayer of bail of the applicant on the ground that the applicant is accused of committing heinous offence while Shri Desh Ratan Mishra, learned counsel for the informant/ complainant submits that though the two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad have chosen not to support the case of the prosecution but the evidence of P.W.4- Munsharif is trustworthy and the conviction of the applicant and other co- accuse persons may validly be done on the same. In support of his submissions learned counsel for the applicant has relied on the law laid down by the Hon'ble Supreme Court in Ishwari Lal Yadav and another Vs. State of Chhattisgarh, (2019) 10 Supreme Court Cases 437.

9. Having heard learned counsel for the parties and having perused the record, it is reflected that in the intervening night of 13/14 June, 2022 two person, namely, Abdul Ghani and his wife Chunmunia were found dead and they have been done to death by some unknown persons and in this regard the FIR was lodged not naming any one on 14.6.2022. In the statement of the informant recorded under Section 161 of the Cr.P.C.only an apprehension has been shown against the accused persons to the tune that they were inimical towards the deceased persons on account of a dispute pertaining to a 'Chakroad'. On the next day of the incident the Investigating Officer has recorded the statement P.W.5- Haseeb Ali and P.W.6- Jawwad and they have claimed to have seen the applicant and two other co-accused persons going towards the house where the dead body of the two persons have been recovered. Admittedly these two star witnesses on whose evidence the entire case of the prosecution was resting has chosen not to support the case of the prosecution during trial. Statement of one Munsharif was also recorded and it is shown that the applicant and other co- accused persons have confessed their guilt before him. Munsharif is shown to be the Pradhan of the village. It appears to be another admitted situation that the blood stained spade and clothes are shown to have been recovered on the joint pointing of the co-accused Taikoor and Sonu @ Sameer and thus nothing is shown to have been recovered either from the possession of the applicant or on his pointing.

10. Thus evidently the case of the instant applicant is distinguishable and is on better footing than co-accused Sonu @ Sameer whose bail application has been rejected by a Coordinate Bench of this Court. Though, the postmortem reports of two deceased persons would reveal that they have been done to death in a brutal way and multiple incised wounds have been found on the vital parts of their body and the cause of death of them has been ascertained as 'shock and hemorrhage' as a result of ante-mortem injuries, but a criminal case is to be adjudicated on the basis of the evidence available on record, as there is always a danger of being guided by the heinousness of the crime instead of considering the material / evidence available on record.

11. If a holistic view of the evidence of the prosecution is taken, it would emerge that so far as the applicant is concerned, the evidence of only of extra judicial confession is available against him and it is on this basis it is vehemently submitted by learned counsel for the applicant that as the character of the evidence of extra judicial confession is very weak the possibility of the applicant being convicted by the trial court are very weak. Thus, without commenting anything on

12. material/evidence tendered before the trial court as the appreciation of evidence in detail is an area earmarked for the trial court, suffice is to say that keeping in view all the evidence available against the applicant, a case of bail is emerging in favour of the applicant. The bail application moved on behalf of the applicant is, thus, allowed.

13. Let the applicant- Rajau @ Shahnoor Husain involved in the 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 applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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

15. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

16. Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case. Order Date :- 10.1.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

1. Heard learned counsel for the applicant, learned AGA for the State as well as Shri Desh Ratan Mishra, learned counsel for the informant/ complainant and perused the record

2. This is the second bail application moved on behalf of the applicant- Rajau @ Shahnoor Husain for grant of bail, in Case Crime No. 302/2022, under Section 302 IPC, Police Station Kotwali Dehat, District Bahraich, during trial, as his first bail application has not found favour by this Bench and while rejecting the first bail application of the applicant thought he same was rejected but it was simultaneously provided that if the prosecution witnesses, Jawwad, Haseeb Ali and Munsharif are examined before the trial court, even before the stipulated period of 08 months the applicant may renew his prayer for bail before this Court, in this background this second bail application has been filed.

3. Learned counsel for the applicant submits that only on the basis of suspicion and apprehension the applicant has been involved in this case, he was not named in the FIR and after may days of the incident the Investigating Officer appears to have procured two witnesses, namely, Jawwad and Haseeb Ali who claimed to have seen the applicant and other two persons going towards the premises occupied by the two old aged persons and thereafter another witness, namely, Munsharif was procured to state that the accused persons including the applicant has made confession before him of commission of the offence.

4. It is vehemently submitted that two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad who were/are the star witnesses of the alleged crime as according to the prosecution they have seen the applicant and other accused persons going towards the house where the deceased persons were found dead have been examined before the trial court as P.W.5 and P.W.6 and both these witnesses have not supported the case of the prosecution and were declared hostile.

5. It is vehemently submitted that that though the witness Munsharif who has been testified before the trial court as P.W.4 has stated that the accused persons including the applicant has confessed their guilt before him but his evidence is not of any value as the same w as dependent on the testimony of the two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad.

6. Elaborating further it is submitted that the case of the prosecution is that after being seen by P.W.5- Haseeb Ali and P.W.6- Jawwad allegedly going towards the house of the two deceased persons the police was on a hunt against the applicant and other two accused persons and in this back drop they approached the P.W.4- Munsharif and confessed their guilt before him and when the link evidence namely, P.W.5- Haseeb Ali and P.W.6- Jawwad is removed there would be a vacuum in the prosecution story, casting the testimony of Munsharif is highly doubtful.

7. It is also submitted that there is material change in the facts and circumstances of the case since rejection of the first bail application of the applicant and though the bail application of one of the co-accused Sonu @ Sameer has been rejected by a Coordinate Bench of this Court but the case of the applicant is on better footing than him, as the recovery of spade and clothes are shown to have been recovered on the pointing of the co- accused Sonu @ Sameer. The applicant is in jail in this case since 18.07.2022. The conclusion of trial would take some time to conclude and having regard to the evidence available before the trial court, the conviction of the applicant is a remote possibility. He is not having any criminal history either.

8. Learned A.G.A. on the other hand opposes the prayer of bail of the applicant on the ground that the applicant is accused of committing heinous offence while Shri Desh Ratan Mishra, learned counsel for the informant/ complainant submits that though the two prosecution witnesses, namely, P.W.5- Haseeb Ali and P.W.6- Jawwad have chosen not to support the case of the prosecution but the evidence of P.W.4- Munsharif is trustworthy and the conviction of the applicant and other co- accuse persons may validly be done on the same. In support of his submissions learned counsel for the applicant has relied on the law laid down by the Hon'ble Supreme Court in Ishwari Lal Yadav and another Vs. State of Chhattisgarh, (2019) 10 Supreme Court Cases 437.

9. Having heard learned counsel for the parties and having perused the record, it is reflected that in the intervening night of 13/14 June, 2022 two person, namely, Abdul Ghani and his wife Chunmunia were found dead and they have been done to death by some unknown persons and in this regard the FIR was lodged not naming any one on 14.6.2022. In the statement of the informant recorded under Section 161 of the Cr.P.C.only an apprehension has been shown against the accused persons to the tune that they were inimical towards the deceased persons on account of a dispute pertaining to a 'Chakroad'. On the next day of the incident the Investigating Officer has recorded the statement P.W.5- Haseeb Ali and P.W.6- Jawwad and they have claimed to have seen the applicant and two other co-accused persons going towards the house where the dead body of the two persons have been recovered. Admittedly these two star witnesses on whose evidence the entire case of the prosecution was resting has chosen not to support the case of the prosecution during trial. Statement of one Munsharif was also recorded and it is shown that the applicant and other co- accused persons have confessed their guilt before him. Munsharif is shown to be the Pradhan of the village. It appears to be another admitted situation that the blood stained spade and clothes are shown to have been recovered on the joint pointing of the co-accused Taikoor and Sonu @ Sameer and thus nothing is shown to have been recovered either from the possession of the applicant or on his pointing.

10. Thus evidently the case of the instant applicant is distinguishable and is on better footing than co-accused Sonu @ Sameer whose bail application has been rejected by a Coordinate Bench of this Court. Though, the postmortem reports of two deceased persons would reveal that they have been done to death in a brutal way and multiple incised wounds have been found on the vital parts of their body and the cause of death of them has been ascertained as 'shock and hemorrhage' as a result of ante-mortem injuries, but a criminal case is to be adjudicated on the basis of the evidence available on record, as there is always a danger of being guided by the heinousness of the crime instead of considering the material / evidence available on record.

11. If a holistic view of the evidence of the prosecution is taken, it would emerge that so far as the applicant is concerned, the evidence of only of extra judicial confession is available against him and it is on this basis it is vehemently submitted by learned counsel for the applicant that as the character of the evidence of extra judicial confession is very weak the possibility of the applicant being convicted by the trial court are very weak. Thus, without commenting anything on

12. material/evidence tendered before the trial court as the appreciation of evidence in detail is an area earmarked for the trial court, suffice is to say that keeping in view all the evidence available against the applicant, a case of bail is emerging in favour of the applicant. The bail application moved on behalf of the applicant is, thus, allowed.

13. Let the applicant- Rajau @ Shahnoor Husain involved in the 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 applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial. (ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment. (iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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

15. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

16. Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case. Order Date :- 10.1.2025 Muk MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench