Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 4226 of 2017 Applicant :- Jabbar Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Babu,Mohd. Khalil,Rama Shankar Mishra Counsel for Opposite Party :- G.A.,Sunil Vashishtha
Hon'ble J.J. Munir,J.
This is an application for bail on behalf of Jabbar in connection with Case Crime No. 519 of 2015 under Section 302 IPC, P.S. Mawana, District Meerut.
Heard Sri R.B. Trivedi and Sri Mohd. Khalil, learned counsel for the applicant, Sri Sunil Vashishtha, learned counsel for the complainant and Sri S.A.S. Abidi, learned AGA along with Sri Kulveer Singh, learned counsel on behalf of the State.
The submission of the learned counsel for the applicant is that the prosecution story is ex facie concocted that the deceased Shahina, a child of 13 years was shot by the applicant while merriment in a marriage function with disco play were going on; that the victim received a gunshot injury from some unknown quarter in consequence of celebration firing that was going on in keeping with the tempo of the occasion; that the deceased was hit by the bullet as the post-mortem report shows to her left wrist on the radial end which cannot be a fatal injury going by its site; that the deceased received an injury to the left side in the back of her head 12 Cms. back to the left ear leading to fracture of head backbone as found in the post-mortem report which is certainly not attributable to the gunshot allegedly fired by the applicant; that the applicant has no reason, cause or motive to shoot the young child; that instead it is a property dispute between the applicant and the first informant that has led to a false implication through an opportunistic FIR lodged in connivance with the police, the police being already annoyed with the applicant on account of a writ petition filed by him before this Court and complaint to higher authorities in the department as set out in paragraphs 13 and 14 of the affidavit in support of the bail application; that the entire case is based on conjecture and no evidence is available; and, that the applicant who is a respectable person with no criminal history is in jail in the present crime as an under trial since 24.12.2015, that is to say, a period of two years and a quarter. He is entitled to the indulgence to bail.
Learned Counsel for the complainant Sri Sunil Vashishtha has vehemently opposed the prayer for bail and argued that the applicant is a hardened criminal and intentionally murdered the minor child shooting her with a .32 bore pistol about which there is a consistent ocular version supported by medico legal evidence; that a shot in fact hit the child in her wrist but the impact caused her to fall backwards on her head with such force that she received a fatal injury to the back of her head on account of impact from the fall; that the shot was aimed and fired by the applicant with premeditaton and intention and it is of little consequence as to how that precisely caused the victim's death; that the applicant is a hardened criminal who has a criminal history of twelve cases annexed as Annexure CA 3 to the counter affidavit filed on behalf of the complainant; that of the twelve cases enlisted for the period 2005-2016 includes offences under Section 307 IPC besides Section 380 IPC, Section 25 Arms Act and section ¾ Goonda Act; that in the ongoing trial, seven witnesses of fact have already been examined and two are all that are left of the formal witnesses where the next date fixed before the trial Court is 30.03.2018; that looking to the entire facts and circumstances, in particular, the criminal history of the applicant and the stage of trial in the present case that is drawing to a close with the prosecution evidence nearly complete it is not a fit case for bail; that he further submits that in each of the twelve cases the applicant is on bail and has committed the present crime while he was on bail in a number of cases which amounts to misuse of the liberty of bail. As such, no case for bail is made out.
Learned counsel for the applicant in a limited rejoinder has pointed out that the criminal history is mostly the product of false implication by the police, for the reasons already said about ill-will of the police against the applicant; that the applicant has been acquitted in case Crime No. 465 of 2009 under Section 354 and 506 IPC P.S. Mawana District Meerut vide judgment and order dated 10.10.2010 passed by the Judicial Magistrate, Meerut in case Crime No. 766 of 2009 'State Vs. Jabbar', a certified copy of which has been produced before the court.
Learned AGA has also opposed the prayer for bail adopting the submissions of the learned counsel for the complainant.
Considering the overall facts and circumstances of the case, the nature of allegations, the gravity of the offence, the severity of punishment, the fact that a young child has become the victim of the offence giving rise to the present crime, the criminal history of the applicant and the fact that he was on bail in cases when the present crime is said to have been committed but without expressing any opinion on merits this Court does not find it to be a fit case for bail at this stage.
It is clarified that anything said in this order will not influence the trial Court in their independent appreciation of evidence that is led at the trial.
Accordingly this bail application stands rejected at this stage.
Considering the fact that the applicant is in jail has an under trial since 24.12.2015 and two witnesses of the prosecution alone are left to be examined, the trial court is directed where the S.T. No. 357 of 2016 State Vs. Jabbar under Section 302 IPC, P.S. Mawana (arising out of case Crime No. 519 of 2015) is pending to proceed with and conclude the same positively within a period of three months next from the date of receipt of a certified copy of this order which shall be certified to the trial court concerned through the Sessions Judge, Meerut forthwith by the Office.
In case, the witnesses do not respond to the summons issued in the first instance, immediate stringent coercive measures be adopted to secure their presence. Once a witness appears, he/she/they shall not be discharged until conclusion of evidence.
Order Date :- 28.3.2018 Deepak