Court No. - 43
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21563 of 2021 Applicant :- Zakir Opposite Party :- State Of U.P Counsel for Applicant :- Gaurav Kakkar Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Matter taken up through video conferencing.
Heard Sri Raghvendra Prakash, learned Advocate holding brief of Sri Gaurav Kakkar, learned counsel for the applicant and Sri Virendra Kumar Maurya, learned A.G.A. for the State and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Zakir, seeking enlargement on bail during trial in connection with Case Crime No. 111 of 2021, under Sections 302, 120-B I.P.C., registered at Police Station Kotwali Shahar, District Bijnor.
Learned counsel for the applicant argued that the present case is a case of circumstantial evidence. It is argued that although the applicant is named in the first information report along with Smt. Gulshan who is the wife of the deceased but the name of the applicant is only on the basis of suspicion. It is argued that the averment in the first information report that the applicant was having an affair with Smt. Gulshan, which is the motive for committing murder of the deceased by the said two named accused persons along with unknown persons has no evidence. It is argued that initially, an application was given by Kasim one of the brothers of the deceased to the police which was recorded in GD No. 044 on 28.02.2021 at 14:22 hrs in which the applicant is not named. It is argued that although the deceased Iqramuddin died after which the doctor conducting the postmortem examination has opined the cause of death as Asphyxia due to strangulation but the implication of the applicant in the present case is only on the basis of suspicion. It is further argued that even in the statement of first informant recorded under Section 161 Cr.P.C., the copy of which is annexed as Annexure-5 to the affidavit, the same version has been stated. Learned counsel has placed before the Court Annexure-6 to the affidavit being the statements of Arif and Jameer Ahmed who have been stated as witnesses of certain circumstances and it is stated that even in the said statements though it is mentioned that the deceased was travelling along with 03 other persons but the applicant is not named and although the said persons have stated that they have recognized the said three persons but no test identification has been conducted. It is argued that the applicant has a criminal history of one case which is a matrimonial case which has been explained in para 38 of the affidavit.
It is further argued that alleged recovery as stated of a mufflar / scarf and the purse which is alleged to be that of the deceased is from an open place which is a field in which sugarcane was sown. The said recovery memo has been placed before the Court which is annexed as Annexure-9 to the affidavit and the same is said to have been effected on 02.03.2021. It is argued that the said recovery is false and is a oblique recovery without any public witness and there is no corroboration of the use of mufflar and the purse as allegedly shown to have been recovered and said to be of the deceased, has not been connected as that of the deceased. It is argued that links in the chain are conspicuously missing to show implication of the applicant. It is argued that co-accused Aabid has been granted bail by this Court vide order dated 25.05.2021 passed in Criminal Misc. Bail Application No. 21000 of 2021. It is argued that the applicant is in jail since 03.03.2021.
Per contra learned A.G.A vehemently opposed the prayer for bail and argued that there is a specific recital of the fact in the first information report that the applicant was having an affair with Smt. Gulshan wife of the deceased which was being opposed and objected to by the deceased which was the motive to commit his murder. It is argued that the case of the applicant is distinguishable to that of co-accused Aabid who has been granted bail as the applicant is named in the first information report whereas Aabid was not named in the first information report and his implication in the present case had surfaced on the disclosure of police informer. It is argued that even other witnesses have stated that the deceased had told them that his wife Gulshan was having an affair with the applicant / Zakir to which the deceased used to object. It is argued that the prayer for bail be rejected.
After having heard the learned counsel for the parties and perusing the record, I find that the case of the applicant is distinguishable with that of co-accused Aabid who has been granted bail as the applicant is named in the first information report along with wife of the deceased with whom it is stated that he has illicit affair. The statements of other witnesses also go to show that the applicant was involved with the wife of the deceased and the same was the motive for committing murder.
Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
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 :- 27.5.2021 AS Rathore Digitally signed by Justice Samit Gopal Date: 2021.05.28 16:46:57 IST Reason: Document Owner Location: High Court of Judicature at Allahabad