Court No. - 88
Case :- CRIMINAL APPEAL No. - 3335 of 2020 Appellant :- Mohd. Sajid Respondent :- State Of U.P. And Another Counsel for Appellant :- Gaurav Kakkar Counsel for Respondent :- G.A.,Ved Prakash Mishra
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri Gaurav Kakkar, learned counsel for the appellant, Sri Bhanu Prakash Singh, learned Brief Holder for the State and perused the material available on record.
This Criminal appeal under Section 14-A(2) of SC/ST (Prevention of Atrocities) Act, 1989 has been preferred by the appellant with the prayer to set aside the order dated 07.11.2020, passed by Special Judge S.C./S.T. (P.A.) Act, Moradabad in Case Crime No. 1418 of 2020, under Sections - 302, 201, 364 I.P.C. & Section - 3(2)V of S.C./S.T. (P.A.) Act, Police Station - Civil Lines, District - Moradabad.
Argument in brief is that, it is a case based on circumstantial evidence. The chain of circumstances is inconsistent and does not point to the guilt of the accused beyond all reasonable doubt and is not conclusive as such. Assuming it to be that any last seen was created, even then the last seen by itself, if found to be concreate one vis a vis the attendant facts and circumstances of the case the same cannot be the sole ground for recording conviction of the accused as such unless the other clinching and consistent testimony point out the guilt of the accused. In so far as the statement of the prosecution witnesses are concerned, the same appear to have been procured and the statement of one of the employees of the co-accused (Yashank Goyal) say namely- Shailesh was procured by the police after 13 days of the incident and it cannot be believed as such and the outcome of the F.I.R. itself indicates that suspicion was the ground for involving the appellant in the offence. Motive which forms core of the case in matter of circumstantial evidence case is weak and vague and has got no application against the appellant. There is no evidence of its worth that the appellant was found or seen loitering near the place from where the body of the deceased was recovered. In case, the appellant is admitted to bail, there is no possibility of his absconding or misusing the liberty of bail. The appellant has no criminal history and is languishing in jail since 19.10.2020.
While, retorting to the aforesaid argument Sri Bhanu Prakash Singh, learned Brief Holder for the State has submitted that in this case, it is evidence against all the accused-appellants that they were seen on 14.10.2020 at 6:00 p.m. at the office of Yashank Goyal in company with the deceased and after some hot altercation took place, hard beating was given by all the three accused to the deceased inside the office. Thereafter, the accused were seen leaving the place in company with the deceased, while one of the accused Sajid left on motor cycle. The other two co-accused leaving the last seen place along with one unknown person in a black Creta car and there is specific testimony that the deceased was called by none other than co- accused Yashank Goyal.
However, learned Brief Holder for the State has not disputed the other aspects that there is no evidence regarding fact that the deceased was identified on the spot while leaving the place of occurrence (last seen) and the evidence regarding loitering of the appellant near the place from where the dead body was recovered, motive is not specific against the appellant is wanting and he has not disputed the same.
I have considered the rival submissions so made and having gone through the entire record as well as the order by which, bail application of the appellant-applicant has been rejected, impugned herein in this appeal.
Nothing convincing has been argued on behalf of the complainant/ State so as to justify and sustain the order passed by the court below rejecting the bail application of the appellant.
Thus, in view of the above and having regard to the facts and circumstances of the case and keeping in view the evidence, complicity of the accused, I am of the view that the appellant has made out a case for bail.
Accordingly, this appeal is allowed and the impugned order dated 07.11.2020, rejecting the bail of the appellant is set aside.
Let the accused-appellant, namely, Mohd. Sajid involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each of the like amount to the satisfaction of Court concerned subject to the condition that appellant shall cooperate in the trial and will not tamper with the evidence.
Observations made in the order shall be confined to the disposal of this appeal and shall not travel beyond that and the trial court shall not be prejudiced by the same in any manner.
Order Date :- 6.4.2021 / S Rawat