Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15429 of 2021 Applicant :- Mohammad Gulzar @ Babby Opposite Party :- State of U.P.
Counsel for Applicant :- Imran Ullah,Vineet Vikram Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Imran Ullah, learned counsel for the applicant, Sri Dharmendra Kumar Singh, learned counsel for the first informant and Sri Ankit Srivastava, learned brief holder for the State and perused the material on record.
Sri Dharmendra Kumar Singh appearing on behalf of the first informant states that he has filed his Vakalatnama in the office on 12.08.2021. The same is not on record. Office is directed to trace out the same and place it on record and make a note thereof in the order-sheet.
Learned counsel for the applicant states that he does not intend to file any rejoinder affidavit to the counter affidavit filed on behalf of the State.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Mohammad Gulzar @ Babby, seeking enlargement on bail during trial in connection with Case Crime No. 1048 of 2020, under Sections 302 and 504 I.P.C., registered at Police Station Kotwali Farrukhabad, District Farrukhabad.
Learned counsel for the applicant argued that the incident in the present case is of 26.11.2020 at about 07:30 PM for which a first information report was registered on 27.11.2020 at about 00:11 hrs by Ramji Tiwari under Sections 307, 504 I.P.C. against two persons namely Naushad @ Thapa and Chaman. It is argued that the applicant is not named in the first information report. Subsequently, Anmol Tiwari who was the injured, died and then an application dated 04.12.2020, the copy of which is annexed at page 36 was given by the first informant to the police, informing about the death of Anmol Tiwari, on the basis of which the case was converted into one under Section 302 and 504 I.P.C., even therein, the name of the applicant as an accused, does not find place. It is argued that subsequently, in parcha no.9 dated 07.12.2020, the copy of which is annexed as Annexure-8 to the affidavit, the Investigating Officer has mentioned that he has come to know from the persons of nearby place in the village that the applicant and one Adil have role in the murder. Later on, in parcha no.11 dated 15.12.2020, the copy of which is annexed as Annexure-9 to the affidavit, it is mentioned by the Investigating Officer that on an investigation in a secretive manner by roaming about in village, he has come to know that the applicant is involved in the matter who was called by Adil. Learned counsel has then placed Annexure-10 & 11 to the affidavit and has argued that later on after about one month of the incident i.e. on 23.12.2020, Tahir, Ikrar Ali, Mohd. Naseem and Utsav @ Sonu are shown as eye-witnesses to the incident who have stated that the applicant fired upon the deceased as a result of which he died. It is argued that the sudden appearance of the said four eye-witnesses, is the handy work of the police and there was no reference anywhere during investigation that the said three persons were eye-witnesses to the incident. It is argued that the first informant, in the first information report has stated that the deceased while being in an injured condition, had disclosed the name of two persons being Naushad @ Thapa and Chaman as the persons who had shot him and the same is an oral dying declaration of the deceased to the first informant which related to the cause of his receiving injury and his death. It is argued that implication of the applicant is after one month of the incident by way of the statements of three alleged eye-witnesses. It is argued that even four eye-witnesses have all of sudden surfaced in the matter and have claimed themselves to be eye-witnesses on which, the prosecution is relying and showing them as eye-witnesses. It is argued that as per the postmortem report, the deceased is said to have received 03 stitched wounds and 02 surgical wounds and the cause of death was septicemia due to antemortem injuries received by him. It is argued that the applicant is not named in the first information report and initially, his name surfaces on the basis of suspicion only and after about a month, four witnesses surfaced, who named him and gave the role of firing upon the deceased. The prosecution has shown recovery of a country-made pistol from the pointing out of the applicant, which is also a planted recovery and there is no corroboration of the use of the said weapon. It has also been pointed out that the applicant is not having any criminal history as stated in para 39 of the affidavit and he is in jail since 24.12.2020.
Per contra, learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer for bail and argued that the applicant is the person who has been assigned the role of assaulting the deceased with a country- made pistol. There are four eye-witnesses to the incident who have given the role of firing upon the deceased. It is argued that as such, implication of the applicant is there in the present case and the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, it is apparent that the applicant is not named in the first information report. The name of the applicant, surfaces for the first time in the matter by the disclosure of police informer and after about a month, four eye-witnesses to the incident surfaced who have named the applicant and have given the role of firing upon the deceased. There is an oral dying declaration of the deceased to the first informant, which does not name the applicant.
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.
Let the applicant- Mohammad Gulzar @ Babby, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties (one of the sureties will be of family members) 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.
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.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 13.8.2021 AS Rathore (Samit Gopal,J.)