Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39843 of 2018 Applicant :- Qadeer And Another Opposite Party :- State Of U.P.
Counsel for Applicant :- Krishna Mohan Tripathi,Sunil Kumar Counsel for Opposite Party :- G.A.,Surendra Nath Tripathi
Hon'ble Harsh Kumar,J.
Heard Sri K.M. Tripathi, learned counsel for the applicants, Sri S.N. Tripathi, learned counsel for the first informant, learned A.G.A. and perused the record.
Learned counsel for the applicants contends that the applicants have been falsely implicated due to village party-bandi; that the entire prosecution story is absolutely false and incorrect; that the real fact is that on 9.12.2017 in the case of illegal mining of sand, three mounts of sand measuring 182.50, 730.02 and 1457.28 cubic meters were given by the Village Lekhpal in custody of co- accused Noor Hasan, the Village Pradhan of Village Rampur Dhamman as well as one JCB loaded with sand vide custody memos at Annexure-9; that on 4.1.2018 at about 4:00 p.m. alleged injured Farjand, Ahsan along with Shahid, Jahid, Wahid and Abid tried to forcibly take away the sand and upon protest they made fires resulting in injuries to applicant no.1 Qadeer regarding which F.I.R. was lodged by Gulam Nabi, the nephew of applicant at Case Crime No.26 of 2018, under Sections 147, 148, 149, 324, 323 I.P.C.; that the injury report of applicant no.1 dated 5.1.2018 at 2:15 p.m. shows that he sustained gun shot injury in the incident; that the description of incident specifying five fire arms on five accused persons with specific description that bullet of which accused hit which of the injured indicates the incorrectness of prosecution case as in such a case of indiscriminate firing nobody can narrate as to fire made by which person hit and caused injuries to which person; that in order to save themselves, a false F.I.R. has been got lodged by Ahsan and Farzand, the culprits of Case Crime No.26 of 2018 through Shahid Husain; that injury reports of Ahsan and Farzand do not show any fire arm injury of double barrel gun as alleged in F.I.R. and only pellet injuries were there without any blackening and tattooing; that the prosecution has failed to explain injury of accused-applicant no.1; that co- accused Noor Hasan, who allegedly fired at Rafeeq, the only deceased in this matter, has been granted bail vide order dated 28.6.2018 passed by another Bench of this Court in Criminal Misc. Bail Application No.21996 of 2018, copy filed at Annexure No.14; that the applicants have no criminal history; that the applicants undertake that they will not misuse the liberty of bail; that the applicants are in custody since 10.8.2018.
Learned A.G.A. and learned counsel for the first informant vehemently opposed the prayer of bail and contended that F.I.R. of cross case has been lodged with concocted facts as a matter of counter-blast; that it is wrong to say that the applicants tried to take away the sand for custody of co-accused Noor Hasan; that the real fact is that Noor Hasan, Village Pradhan called the injured persons and asked them to deliver the sand at his home to which they refused upon which the incident has been committed; that the case of Noor Hasan was distinguishable as he is alleged to have caused bullet injuries on the buttock of Rafeeq, the deceased.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment, grant of bail to co-accused; version and cross version of cross cases as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.
Let the applicants Qadeer and Asif be released on bail in Case Crime No.13 of 2018, under Sections 452, 504, 506, 307, 302 I.P.C., P.S. Tanda, District Rampur, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-
(i) The applicants will co-operate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(ii) The applicants will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(iii) The applicants will not indulge in any unlawful activities.
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 applicants to prison.
Order Date :- 26.11.2018 Kpy