Allahabad High Court
Jamalu @ Jamaluddin vs State Of U.P. on 6 October, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2023:AHC:193319 Reserved on: 25.09.2023 Delivered on: 06.10.2023 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34135 of 2023 Applicant :- Jamalu @ Jamaluddin Opposite Party :- State of U.P. Counsel for Applicant :- Himanshu Srivastava Counsel for Opposite Party :- G.A. Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38476 of 2023 Applicant :- Aftar @ Akhtar Opposite Party :- State of U.P. Counsel for Applicant :- Himanshu Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Himanshu Srivastava, the learned counsel for applicants and the learned A.G.A. for State.
2. Perused the record.
3. These applications for bail have been filed by applicants- Jamalu @ Jamaluddin and Aftar @ Akhtar seeking their enlargement on bail in Case Crime No. 94 of 2022, under Sections 302, 201 IPC, Police Station - Jatha Bazar, District-Kushinagar during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred in between 10.06.2022 to 12.06.2022, an FIR dated 12.06.2022 was lodged by first informant-Vinod Yadav (son of the deceased) and was registered as Case Crime No. 94 of 2022, under Section 363 IPC, Police Station - Jatha Bazar, District-Kushinagar. In the aforesaid F.I.R. 4 persons namely - (1) Jamalu @ Jamaluddin, (2) Kayamu @ Kayamuddin, (3) Balai and (4) Aftar have been nominated as named accused.
5. The gravamen of the allegations made in the FIR is to the effect that named accused on a false premise, took the father of first informant for sharing a cup of tea with them. However, the father of the first informant did not return home. Resultantly, enquiry was made at the house of named accused but they were not present in their house.
6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C.. The dead body of the deceased was recovered on 12.06.2022 along the banks of the river in another State and Police Station. As per the inquest report, which is on record at page 46 of the paper book, the cause of death of deceased was opined as strangulation and therefore, the Police Officer categorized the death of deceased as homicidal. Subsequent to above, the post mortem of the body of deceased was conducted. In the opinion of the Autopsy Surgeon, who conducted the autopsy of the body of deceased, the cause of death of deceased was said to be Asphyxia due to strangulation (homicidal). The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
"External - Rigor mortis present in all limbs. Diffused swelling of whole body due to putrefaction. Tongue protruded (between the tongue) large amount of mud present under the underwear (About 2 kg) cyanosis present.
Internal - Larmged bone in fractured. Brain intact and congested. Lungs intact and swollen. Heart intact congested and ventricles contain blood. Liver, spleen and kidney intact and congested. Stomach partially digested food is present. Urinary bladder contains about 50 ml urine."
7. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. Accordingly, applicants, who are named accused and their complicity in the crime in question, surfaced as per the material collected by the Investigating Officer up to that stage, accordingly, they were arrested on 12.05.2023 and 11.07.2023 respectively. The accused were examined under Section 161 Cr.P.C. and according to their version of the occurrence, the deceased had died on account of drowning. Similar statement to that effect was also made by independent witnesses namely Ramesh Yadav, Azad Ali, Indrajeet Ram and other villagers. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of present applicants is fully established in the crime in question. Accordingly, Investigating Officer submitted the charge sheet dated 31.07.2023, whereby applicants have been charge sheeted under Sections 302, 201 IPC.
8. Learned counsel for applicants submit that though applicants are named accused yet they are innocent. As such, they are liable to be enlarged on bail. Referring to the statements of the applicants and other witnesses examined under Section 161 Cr.P.C., the learned counsel for applicants vehemently submits that the deceased had died on account of drowning. The recital contained in the post mortem report is incorrect. The same is contrary to the testimony of the eye witnesses of the occurrence. He, therefore, contends that in view of above, the complicity of applicants in the crime in question cannot be inferred and therefore, applicants are liable to be enlarged on bail.
9. It is then contended that the charge sheet has been submitted against applicants on 31.07.2023 under Sections 302, 201 IPC, however, the investigation against present applicants is still said to be pending. With reference to the judgment of the Supreme Court in Ritu Chhabaria Vs. Union of India and Others, 2023 SCC OnLine SC 502, he submits that since full and final charge sheet has not been submitted against applicants, therefore, the applicants are clearly entitled to the benefit of default bail as per the provisions contained in Section 167(2) Cr.P.C.
10. Even otherwise, applicants are men of clean antecedents, inasmuch as, they have no criminal history to their credit except the present one. Applicants are in jail since 12.05.2023 and 11.07.2023 respectively. As such, they have undergone substantial period of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicants stands crystallized. However, up to this stage, except for the post mortem report of the deceased, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicants during the pendency of trial. On the above premise, he submits that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.
11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicants are named/charge sheeted accused inasmuch as, the charge sheet has been submitted against applicants on 31.07.2023, therefore, they do not deserve any indulgence by this Court. Learned A.G.A. vehemently submits that as per the medical opinion, the nature of death of deceased is homicidal and not suicidal, as the cause of death of deceased is strangulation. The medical opinion given by the Autopsy Surgeon cannot brushed aside, simply on the basis of testimony of independent witnesses examined under Section 161 Cr.P.C. Up to this stage, no such material has emerged either on the basis of which, the medical opinion could be ignored by this Court. With regard to the judgment of Supreme Court in Ritu Chhabaria (Supra), the learned A.G.A. submits that the judgment relied upon by the learned counsel for applicants is not at all applicable to the facts of the present case, as full and final charge sheet has already been submitted against applicants. He, therefore, contends that no new or good ground has been made out to enlarge the applicants on bail.
12. When confronted with above, the learned counsel for applicants could not overcome the same.
13. Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that as per the opinion of Autopsy Surgeon, the nature of death of deceased is homicidal as the cause of death of deceased is ante-mortem strangulation, up to this stage, there is nothing on record on the basis of which, the opinion of the Autopsy Surgeon could be discarded, the judgement relied upon by the learned counsel for applicants in support of the proposition that since full and final charge sheet has not been submitted against applicants, therefore, they are entitled to the benefit of default bail is fully misconceived as the judgment relied upon by the learned counsel for applicants in the case of Ritu Chhabaria (Supra), is no longer as good law and stands overruled by the subsequent three judges judgment of the Supreme Court in Judgebir Singh @ Jasbir Singh @ Jasbir (Supra), therefore, irrespective of the submissions urged by the learned counsel for applicants in support of the present applications for bail but without making any comments on the merits of the case, this Court does not find any good ground to enlarge the applicants on bail.
14. As a result, present applications for bail fail and are liable to be rejected.
15. They are, accordingly, rejected.
Order Date :- 06.10.2023 HSM