Allahabad High Court
Amzad vs State Of U.P. on 3 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:155718 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 21824 of 2023 Applicant :- Amzad Opposite Party :- State of U.P. Counsel for Applicant :- Chandra Prakash Misra,Sushil Kumar Mishra Counsel for Opposite Party :- G.A. and Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19291 of 2023 Applicant :- Naushad Ansari Opposite Party :- State of U.P. Counsel for Applicant :- Sushil Kumar Mishra,Chandra Prakash Misra Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Chandra Prakash Misra, the learned counsel for applicant and the learned A.G.A. for State
2. Perused the record.
3. Instant bail applications have been filed by applicants-Amzad and Naushad Ansari seeking their enlargement on bail in Case Crime No.757 of 2022 under Sections 302 and 201 I.P.C., Police Station-Kotwali Padrauna, District-Kushinagar, during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 06.12.2022 a prompt F.I.R. dated 06.12.2022, was lodged by first informant-Roshan Ali (father of the deceased) and was registered as Case Crime No.757 of 2022 under Sections 302 and 201 I.P.C., Police Station-Kotwali Padrauna, District-Kushinagar. In the aforesaid F. I.R., an unknown person has been arraigned as an accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that on 06.12.2022 at around 11.00AM, the dead body of the daughter of the first informant namely Shaleha Khatun was found in the sugar cane field of one Isha Ansari. The deceased sustained various injuries on her neck, face and eyes. The F.I.R. further records that prima-facie cause of death of the deceased is strangulation and thereafter, the dead body of the deceased was thrown at the place mentioned above.
6. After aforementioned F.I.R. was registered, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C. He took possession of the body of the deceased. Thereafter, inquest (panchayatnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterised as homicidal. Subsequent to above, the post-mortem of the body of the deceased was conducted. The Autopsy Surgeon, who conducted autopsy of the body of deceased found following ante-mortem injuries on the body of deceased:
i. Abraded contusion 3cm x 3 cm cover left eye.
ii. Abrasion 4 cm x 2 cm right face just 1 cm below right ear. iii. 5cm x 5 cm animal bite over right ear.
iv. Ligature mark present horizontal continuous below Hyroid gland 33 X 1 cm front of neck and 5 cm below left ear and 6 below. .
7. In the opinion of Autopsy Surgeon, the cause of death of deceased was asphyzia as a result of ante mortem injuries.
8. During course of investigation, Investigating Officer examined Roshan Ansari, Sayara Khatoon, Nisar Ahamad and Suhail under Section 161 Cr.P.C. The first informant namely Roshan Ansari in his statement under Section 161 Cr.P.C. has implicated the present applicant and his two family members i.e. his wife and his daughter-in-law in the crime in question. Another witness namely Shayara Khatoon who is the bhabhi of the applicant Nishar Ali in her statement has categorically stated that murder was committed by two members i.e. sister of applicant and the mother of deceased. She has further detailed the manner of occurrence. Another witness namely Nishar Ali has deposed that he had seen the accused taking away the dead body of the deceased in the sugar-coated field. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of four persons namely Amzad (applicant herein) Nausad Ansari (applicant herein)Nazibun Nisha and Begum Khatoon is fully established in the crime in question. He therefore opined to submit a charge-sheet. Accordingly, Investigating Officer submitted the charge sheet dated 02.03.2023, whereby four persons namely i. Begaum Khatoon, Nazibun Nisha, Amzad and Nausad Ansari have been charge sheeted under Section under Sections 302 and 201 I.P.C..
9. Learned counsel for applicants contend that applicants are not named in the F.IR. They are innocent. Present case is a case of circumstantial evidence. Therefore, there is no eye witness of the occurrence. It is next contended that one of the charge-sheeted accused namely Nazibun Nisha has been enlarged on bail by this Court vide order dated 27.03.2023 passed in Criminal Misc. Bail Application No. 10718 of 2023 (Nazibun Nisha Vs. State of U.P.). Another charge-sheeted accused namely Begum Khatoon has also been enlarged on bail by this Court vide order dated 18.04.2023 passed in Criminal Misc. Bail Application No. 10072 of 2023 (Begum Khatoon Vs. State of U.P.) On the above premise, the learned counsel for applicant submits that criminality committed by the charge-sheeted accused is general and common, therefore, applicants are also liable to be enlarged on bail.
10. According to the learned counsel for applicant first informant Roshan Ali has deposed before court below as P.W.-1 hut has been declared hostile. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicants are in custody since 08.12.2022. As such, they have undergone more than eight months 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 relied upon by the prosecution against applicants stands crystallised. There does not exist any such circumstance necessitating custodial arrest of applicants during pendency of trial. He therefore contends 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. for State has opposed the present bail application. He submits that complicity of applicants in the crime in question is fully established as per the statement of Neshar Ahmad and Sayara Khatoon. It is true that first informant has deposed before court below as P.W.-1 but he has declared hostile. However, simply on the basis of above, innocence of applicant cannot be inferred. According to the learned A.G.A., the deceased is the sister of applicants and she was put to death by committing strangulation, which fact is clearly established from the post-mortem report. Up to this stage, there is nothing on record to infer malicious or false prosecution of the applicants. He submits that considering the nature and gravity of offence no liberty be shown by this Court in favour of applicants. On the cumulative strength of above, the learned A.G.A. submits that present applications for bail are liable to be rejected.
11. Having heard the learned counsel for applicants, the learned A.G.A. for State, consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that complicity of applicant is clearly established in the crime in question as per the statement of Nisar Ahmad, Sayara Khatoon and Suhail who have been examined under Section 161 Cr.P.C. Nisar Ahmad is an independent witnesses whereas Sayara Khatoon is the bhabhi of the deceased.There is nothing on record to doubt the credibility or reliability of the aforesaid witness. Nothing has emerged on the basis of which fake or malicious implication of applicants can be inferred, considering the nature and gravity of the offence in the light of the statement of sister of applicants, this court does not find any good ground to enlarge the applicant on bail.
13. As a result, present applications for bail fail and are liable to be rejected.
14 It is accordingly rejected Order Date :- 3.8.2023 YK