Madhya Pradesh High Court
Shahjad Kha vs The State Of Madhya Pradesh on 20 January, 2016
M.Cr.C. No. 11183 of 2015 20/01/2016
Shri I.A. Mev, learned Counsel for the applicant. Shri Sudhanshu Vyas, learned Panel Lawyer for the non-applicant/State.
Shri R.S. Parmar, learned Counsel for the objector. Heard.
This 3rd repeat application has been filed after recording the complete Court statements of Badrilal (PW-5), Manish (PW-10) and Irfan Ali (PW-12). Second application was dismissed on merit by order dated 17.7.2014 by passing following order and recording of the statements of (PW-1) and (PW-2) eyewitnesses of the case and as per their statements specific allegation of causing stab injury to deceased- Shahrukh has been made against the present applicant and as per report five more criminal cases are pending against him.
Order dated 17.7.2014 reads as under:-
"Heard. Case diary perused.
This second repeat application under Section 439 of Cr.P.C. for grant of bail has been filed by the applicant - Shehzad Kha S/o Bhuru Kha. He is implicated in Crime No.99/2012 registered at Police Station - Tal, Alot, District - Ratlam for the offence punishable under Sections 147, 148, 149, 302 and 323 of the IPC and Sections 25 and 27 of the Arms Act.
2.As per case diary, the allegation against the applicant and other co-accused persons is of committing murder of Khattulala @ Mubarik Ali and Shahrukh Khan. It is a case of double murder. On 13.04.2012, after taking tea, complainants Meharban Ali, Sikandar Ali, Khattulala @ Mubarik Ali and Shahrukh Khan were returning to Tal on their motorcycles, when they reached near S. R. Petrol Pump at Alot road of Police Station Tal, one Tavera of red colour came in front of both the motorcycles and stopped them. In the said Tavera vehicle, total 15 persons were there, who were armed with deadly weapons like sword, knife, satur and country made pistol. The allegation against the applicant is of causing fatal injury to Khattulala @ Mubarik Ali and causing injuries to other persons.
3.The first bail application was dismissed as not pressed vide order dated 15.07.2013 passed in M.Cr.C. No.4178/2013.
4.It is submitted that on 13.04.2012, the present applicant was taken into custody at 7.35 PM at Police Station Nimba Heda (Rajasthan), which is about 180 kilometres from the place of occurrence and the applicant was in custody at Police Station Nimba Heda under Section 151 of the Cr.P.C., in arrest memo, the description of the accused has been shown in this case.
5.The plea of alibi has been raised by the learned counsel for the applicant and submitted that it is a case of false implication. At the time of occurrence, applicant was taken into custody at Police Station Nimba Heda and only on 16.04.2012, he has been released by the SDM and prays that this application for grant of bail be allowed and he be released on bail.
6.In reply, learned G. A. submits that applicant was never arrested on 13.04.2012 and he is one of the main assailant for committing the murder of the deceased Khattulala. He submits that 151 proceeding and arrest memo was investigated and after investigation, it came to the knowledge of the authorities that false case under Section 151 at Police Station Nimba Heda was registered against the applicant, just to show his arrest in 151 proceeding and, thereafter, another case has been registered against the applicant and other accused persons under Sections 212, 201 and 120- B of the IPC. He further submits that the court statement of eye-witnesses namely, Meharban Ali (PW-1) and Sikandar Ali (PW-2) were recorded. Both the eye-witnesses were extensively cross- examined by the learned counsel for the applicant and at the time of cross-examination, no plea of alibi has been raised nor plea of alibi was put- forth to the aforesaid eye-witnesses and in view of the court statement of PW-1 and PW-2, the present applicant is the main assailant and prays for its rejection.
7.Shri R. S. Parmar, learned counsel who is appearing on behalf of the objector supported the arguments of the learned counsel for the non- applicant and also prays for its rejection.
8.As per report of Police Station Tal, Alot, District Ratlam, number of criminal cases are pending against the applicant vide Crime No.175/2001, Crime No.94/2006, Crime No.145/2010, Crime No.155/2010 and Crime No.194/2012. As per statement of PW-1 and PW-2, case diary statement of injured and other eye-witnesses, specific allegation has been made against the applicant that he was armed with sword and caused fatal injury to Khattulala @ Mubarik Ali.
9.In respect of plea of alibi, the matter was investigated by the non-applicant whether the applicant was arrested on 13.04.2012 at Police Station Nimba Heda in 151 proceeding. During investigation, it was found that applicant was never arrested and prima-facie, documents by which the applicant was arrested on 13.04.2012 at 7.30 P.M. and was released on 16.04.2012 are manipulated documents.
10.One more case was registered against the applicant and other co-accused persons under Sections 212, 201 and 120-B of the IPC in which, session is going on before the Trial Court in S.T. No.138/2013 and, therefore, at this stage, plea of alibi can be accepted and moreover, no plea of alibi was put-forth before the Trial Court when PW-1 and PW-2 were examined by the prosecution.
11.The plea of alibi was first taken before the Trial Court while deciding the bail application of the applicant - Shehzad vide order dated 03.05.2013. The relevant part of the order reads as under :-
tgka rd cpko i{k ds bl rdZ dk iz'u gS fd ?kVuk fnukad dks ;g vkjksihx.k ?kVuk LFkku ls vU;=] jktLFkku eas Fks rks bl laaca/k eas mudh vksj ls mi[k.M eftLVz~sV fuEckgsM+k ftyk fpRrkSM+x<+ ds ;gka /kkjk 107] 117 ds bLrxklk ds vkns'k if=dk dh izekf.kr izfr dh QksVksizfr izLrqr dh gS ftleas 'kgtkn vkSj bjQku dks fnukad 14-04-2012 dks ogka mifLFkr gksuk crk;k gSA rRlaca/k eas yksd vfHk;kstd }kjk dgk x;k gS fd dfFkr bLrxklk ij dksbZ QksVks vkfn layXu ugha gS o vkjksfi;ksa us "kM+;a=iwoZd mifLFkfr crkbZ gS blfy, rRlaca/k eas bu vkjksih ds fo:) vU; ds lkFk /kkjk 120&ch Hkk0n0fo0 dk vijk/k iathc) gksdj tkap eas gS blfy, ek= izLrqr izys[k ds vk/kkj ij ;g ugha ekuk tk ldrk fd ?kVuk ds le; ;g vkjksihx.k vU;= FksA tks izdj.k eas fo|eku ifjfLFkfr;ksa ls mfpr izrhr gksrk gSA
12.Onus of proving alibi is on defence and accused. As per statement of PW-1 and PW-2, no question was put on behalf of defence in regard to alleged plea. Even otherwise, after the enquiry by the non-applicant, it was found that applicant was never arrested on 13.04.2012 and another case has been registered against the applicant and other co-accused persons and trial is going on. In view of the aforesaid, it will be highly risky to rely upon such a feeble evidence in order to accept plea of alibi to grant bail for the alleged crime.
13.At the time of consideration of first bail application, this plea was available. There is no change in the circumstances.
14.As per record, Akram Kha, Bhuru Khan, Yusuf Khan, Arif Khan and Irfan Kha have been released on bail.
15.Considering the totality of the facts and circumstances of the case, without commenting on the merits of the case, no case for grant of bail, as prayed by the learned counsel for the applicant is made out. M.Cr.C. No.9325/2013 has no merit and is accordingly, dismissed."
In view of the aforesaid, there is no change in the circumstances, nor while deciding the subsequent application this Court ignore the statements of (PW-1) and (PW-2) where they were very categorically assign about the role of the present applicant.
M.Cr.C. No.11183 of 2015 has no merit and is accordingly dismissed.
(P.K. Jaiswal) Judge pp/