Allahabad High Court
Anwar vs State Of U.P. on 17 August, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:165708 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35887 of 2023 Applicant :- Anwar Opposite Party :- State of U.P. Counsel for Applicant :- Ishwar Chandra Tyagi Counsel for Opposite Party :- G.A.,Sameer Khan Hon'ble Samit Gopal,J.
1. List revised.
2. Sri Sameer Khan, learned counsel files his vakalatnama on behalf of the first informant today in Court which is taken on record.
3. Heard Sri Ishwar Chandra Tyagi, learned counsel for the applicant, Sri Sameer Khan, learned counsel for the first informant and Sri Virendra Pratap Singh, learned counsel for the State and perused the material on record.
4. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Anwar, seeking enlargement on bail during trial in connection with Case Crime No. 669 of 2022 (Session Trial No. 86/2023), under Sections 302, 201, 34 IPC, registered at P.S. Amroha Nagar, District Amroha/J.P. Nagar.
5. The FIR of the matter was lodged on 08.12.2022 by Mohd. Mohsin against the applicant and Danish alleging therein that he is a resident of Amroha. His sister Rukhshar was married around eight years back as per Muslim Rites and Rituals with Anwar. After marriage, his brother-in-law Anwar and his family members used to mentally and physically torture his sister. His sister had made a complaint to his mother and brothers many times that Anwar and his family members are troubling her a lot and threatening her of murdering her. On 01.11.2022 he went to the house of Rukhshar where her husband told him that he would not keep his sister, he would either give talak to her or murder her any day. On 05.12.2022 he went to the house of his sister to give the card of a wedding of the family of his another sister who lives in Delhi where he found that Anwar and his brother Danish were quarreling with his sister Rukhshar. He then intervened and pacified them after which all the persons took their dinner and lied down but he was not sleeping on which Anwar and Danish called his sister downstairs after which there was a quarrel between them on which he again intervened and told them that he would call relatives and family members and they would discuss about it. At about 11:15 pm they again called his sister and took her downstairs. He did not care of it. In the morning at about 05:00 am when he woke up and came down he saw Anwar and Danish carrying gunny bag on their motorcycle after which he asked them about it to which they stated that they are going to deliver the material of bakery. He then thought that his sister might be sleeping with her children and since he had to return early he then without meeting her came back. Later on, he along with his mother went to the house of Rukhshar on 06.12.2022 where they came to know that she has gone somewhere after which his mother got a missing report lodged at the police station. On 05.12.2022 Rukhshar was wearing salwar suit and hawai chappal. His sister is not traceable and he has suspicion that the accused persons have murdered her and have concealed her dead body in a gunny bag and FIR be thus lodged. The said FIR was lodged under Sections 302, 201, 34 IPC.
6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that a suspicious gunny bag was seen by the chowkidar of the village of Moradabad lying near Nagnath Mandir by the side of the road regarding which he gave an information to the police through an application on 05.12.2022. It is argued that on the basis of the said application, the inquest on the body of a female was conducted on 05.12.2022 as an unknown body. Subsequently, the postmortem of the same was also conducted as an unknown female body on 06.12.2022. The doctor conducting the postmortem examination found a ligature mark on the body of the said deceased and had opined the cause of death as asphyxia due to antemortem strangulation. The doctor had found a rope tied around the neck with a knot which was recovered by him. It is argued that on 06.12.2022 Smt. Jehra Khatoon the mother of the deceased had given a missing report at police station Amroha Nagar, District Amroha which was recorded in the GD wherein it was stated that her daughter has gone missing from the house since 05.12.2022 at about 10:00 am she was searched but could not be traced. It is argued that the missing report would go to show that the deceased was in her maternal house from where she went missing and the present FIR has been lodged on 08.12.2022 after an unexplained delay of about 3 days from her going missing.
7. It is further argued that co-accused Danish the devar of the deceased has been granted bail by a co-ordinate Bench of this Court vide order dated 03.07.2023 passed in Crl. Misc. Bail Application No. 28887 of 2023 (Danish Vs. State of U.P.). Copy of the said order is annexed as annexure 13 of the affidavit. It is argued that charge sheet in the matter has been submitted against the applicant and co-accused Danish and as such there are no chances of the applicant tampering with evidence. It is further argued that there is no credible evidence against the applicant. He further argued that the applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 08.12.2022.
8. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is the husband of the deceased Smt. Rukshar. It is further argued that the reading of the First Information Report would go to show that the deceased was in her matrimonial house wherein the first informant who is the brother of the deceased had met her on 05.12.2022 after which he slept there in her house and on the next day morning he went away. There is nothing on record to show that the deceased went to her maternal house. Further, on 06.12.2022 when the first informant and his mother went to the house of the deceased Rukhshar then came to know that she has gone somewhere after which her mother gave a missing report to the police. It is argued that even Smt. Jehra Khatoon the mother of the deceased has in her statement recorded under Section 161 Cr.P.C. stated that on 05.12.2022 when she went to the house of Rukhshar she did not meet her after which she searched her in the house of neighbours and relatives but could not know her whereabouts and then on 06.12.2022 she gave a missing report at the police station. It is argued that there is nothing on record to show that the deceased left her matrimonial house and went to her maternal house from where she went missing. It is argued that there is evidence of the deceased, the applicant and co-accused being present in the house in the night. The first informant saw the accused persons taking something in a gunny bag on a motorcycle in the morning. Subsequently, a gunny bag was seen by the village chowkidar who gave information to the police then a dead body of a female was recovered. It is argued that there was no action taken by the applicant who is the husband of the deceased regarding the missing of his wife. The cause of death is asphyxia as a result of strangulation and a rope tied with a knot was found on the neck of the deceased. It is argued that as such the implication of the applicant is there in the present case. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected.
9. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is the husband of the deceased. The deceased and the applicant along with co-accused were seen by the first informant in the house in the night. Subsequently, the deceased went missing. A missing report was got lodged by the mother of the deceased. In the meantime, the body of the deceased was found. There is nothing on record to show that the deceased was living in her maternal house. Looking to the facts of the case, I do not find it a fit case for bail.
10. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
11. The bail application is, accordingly, rejected.
Order Date :- 17.8.2023 M. ARIF (Samit Gopal, J.)