Allahabad High Court
Nazim vs State Of U.P. on 13 February, 2023
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on 02.2.2023 Delivered on 13.2.2023 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26864 of 2022 Applicant :- Nazim Opposite Party :- State of U.P. Counsel for Applicant :- Diwakar Tiwari,Vimlendu Tripathi Counsel for Opposite Party :- G.A.,Dharmendra Kumar Dwivedi,Ram Raksha Tiwari Hon'ble Siddharth,J.
Heard Sri V.P. Srivastava, learned Senior Counsel assisted by Sri Vimlendu Tripathi and Sri Diwakar Tiwari, learned counsels for the applicant; Sri Dharmendra Kumar Dwivedi and Sri Ram Raksha Tiwari, learned counsels for the informant; learned AGA for the State and perused the material placed on record.
The instant bail application has been filed on behalf of the applicant, Nazim, with a prayer to release him on bail in Case Crime No.126 of 2020, under Sections 147, 148, 149, 352, 307, 302, 504, 34 IPC, Police Station Mundali, District- Meerut, during pendency of trial.
There is allegation in the FIR that 10 persons including the applicant made indiscriminate firing from illegal arms on the informant side wherein two sons of the informant died and the informant and one, Asjad got injured.
Learned counsel for the applicant has submitted that specific role has been assigned to the applicant. One of the co-accused, Waseem, was earlier enlarged on bail by this Court in Criminal Misc. Bail Application No.26740 of 2022, which was challenged before the Apex Court in Criminal Appeal No.1784 of 2022. The Apex Court cancelled the aforesaid bail and thereafter remanded the matter on the ground that bail was granted to the co-accused, Waseem on the ground of parity with co-accused, Niyaz Ahmad, whose bail order was set aside by the Apex Court. This Court, after remand of the bail application of co-accused, Waseem, by the order dated 7.12.2022 has granted bail to co-accused, Waseem by a detailed order. The findings of the order of co-accused, Waseem, passed by this Court in Criminal Misc. Bail Application No. 26740 of 2022, are quoted below:-
"Earlier the accused Waseem was granted bail by this Court vide order dated 22.8.2022 in Criminal Misc. Bail Application No.26740 of 2022. The bail granted by this Court was challenged before Hon'ble Apex Court in Criminal Appeal No. 1784 of 2022 arising out of SLP (Criminal) No. 9342 of 2022 and the Hon'ble Apex Court vide order dated 14.10.2022 cancelled the bail granted by this Court to the accused Waseem and this Court was directed to decide the bail application afresh giving reason.
The Hon'ble Apex Court in paragraph nos. 9 and 10 of its order has observed as follows:-
"9. From the order of the High Court which is impugned in the appeal, it is evident that the primary consideration which has weighed with the High Court is that bail had been granted by a Coordinate Bench to co-accused Niyaj Ahmad. As a matter of fact, bail was claimed by the first respondent on the basis of parity.
10. Since the order granting bail to Niyaj Ahmad has been set aside by the judgment of this Court in Ajwar vs. Niyaj Ahmad and anr. (supra) rendered on 30th September, 2022, the impugned order of the High Court would have to be interfered with. The observations of the High Court in regard to other circumstances are bald and vague. The High Court has not dweit on the individual facts of the case at all while granting bail to the first respondent."
Thereafter, in paragraph no. 13 of the Apex Court's order, the Criminal Misc. Bail Application No.26740 of 2022 was restored to the file of the Single Judge of the High Court of Judicature at Allahabad and the Apex Court directed this Court to dispose of the application for bail expeditiously and preferably within a period of one month from the date of receipt of a certified copy of the order.
Learned counsel for the applicant has submitted that the present applicant is quite innocent and he has been falsely implicated in this matter. Learned counsel for the applicant has further submitted that both the deceased persons have received only one gun shot injury on their persons which is evident from their post-mortem reports which are annexed at pages 50 and 62 of the paper book. The post-mortem report of Abdul Khaliq indicates that he has received one fire arm entry wound in the back of head and the cause of death was Carnio Cerebral damage as a result of Ante-mortem fire arm injury and the post-mortem report of Abdul Majid indicates that he has received one fire arm entry wound in abdomen and cause of death was said to be shock and hemorrhage as a result of ante-mortem injury caused by fire arm and the injured Asjad has received one lacerated wound of 4 cm x 5 cm x scalp deep on left perinatal region of head about 10 cm above left ear. Injury no.2 was abrasion 4 cm x 2 cm on left knee. Injury no. 3 was multiple abrasion 2 cm x 2 cm and 1.5 cm x 1 cm over left palm on anterior on left hand. This injured was medically examined on the next day of the incident i.e. 20.5.2020 at 2.15 p.m. and this injured had refused his X-ray to be conducted which he has said in his statement recorded under section 161 Cr.P.C. which is annexed at page 75 onward of the paper book. He further submits that two persons from the side of the defence had also received injuries on their persons. When the Investigating Officer arrested accused Niyaj Ahmad in the morning of 20.5.2020, he found that the accused was having injuries in his head and right hand and the other co-accused Abu Bakar was having blood stains injuries in his head. He further submits that when these persons were carried to Magistrate for remand, the Magistrate directed that their medical examinations to be conducted. The accused persons had given an application to the Duty Magistrate with a prayer that their medical examinations be conducted. When injured accused Niyaj Ahmad was medically examined and his X-ray of right elbow was conducted, the doctor found a foreign body of metallic density in right elbow with soft tissue injuries with multiple small fractures on medial apicondyle of humorous bone. The patient was referred to a surgeon in Pyare Lal Sharma District Hospital, Meerut. He also submits that the prosecution has not come up with clean hands and the prosecution has suppressed the material facts of this case. He also submits that ten persons were nominated in the incident of assaulting the complainant side and later on, one more person was added during investigation and finally eleven persons were said to have assaulted the complainant side but only two persons from the side of the complainant had received only two firearm injuries on their persons. The deceased Abdul Khaliq and Abdul Majid had received only single bullet injury on their persons as there was allegation of indiscriminate firing from the side of the accused. He also submits that the prosecution has nowhere explained the injuries sustained by the accused persons and it seems that the prosecution had hidden the true genesis of the incident.
Learned counsel for the applicant has placed reliance the judgment of Hon'ble Apex Court rendered in the case of Lakshmi Singh and others vs. State of Bihar and other, reported in 1976 (4) SCC 394. He also placed reliance on another judgment of Hon'ble Apex Court rendered in the case of Babu Ram and others vs. State of Punjab, reported in 2008 (Criminal) Law Journal 651 and also in the case of Amarjeet Singh vs. State of Haryana, reported in 2009 (16) SCC 649.
The Apex Court in paragraph no.12 of Lakshmi Singh's case (Supra) held that "It seems to us that in a murder case, the non-explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences:
(1) That the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version:
(2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable;
(3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case."
Learned counsel for the applicant has further submitted that from the side of accused persons a cross case was also registered as case crime no. 361 of 2020 by way of application given under section 156 (3) Cr.P.C. Initially the matter was investigated and the police has submitted final report in this case. Later on, the Magistrate directed for further investigation in the matter then again final report was submitted. Again the learned Magistrate vide order dated 18.11.2022 directed for further investigation indicating certain things directing the police to investigate the matter on certain points. Copy of the order dated 18.11.2022 passed by Judicial Magistrate-I, Meerut is annexed at page-43 of the second supplementary affidavit.
Learned counsel for the applicant has relied upon the paragraph nos. 22, 23 and 24 of the judgment of Hon'ble Supreme Court in the case of Munishamappa vs. State of Karnata reported in (2019) 3 SCC 393 which reads as under:
22. The Trial court, as we have noted earlier, was persuaded despite this state of the evidentiary record to acquit the accused primarily on the ground that the injuries on the accused (except accused No. 2) had not been satisfactorily explained. In Lakshmi Singh (supra), a two judge Bench of this Court held thus:
"12...Indeed if the eyewitnesses could have given such graphic details regarding the assault on the two deceased and Dasain Singh and yet they deliberately suppressed the injuries on the person of the accused, this is a most important circumstance to discredit the entire prosecution case. It is well settled that fouler the crime, higher the proof, and hence in a murder case where one of the accused is proved to have sustained injuries in the course of the same occurrence, the non-explanation of such injuries by the prosecution is a manifest defect in the prosecution case and shows that the origin and genesis of the occurrence had been deliberately suppressed which leads to the irresistible conclusion that the prosecution has not come out with a true version of the occurrence".The decision in Lakshmi Singh has been considered in a later judgment of this Court in Amar Malla v State of Tripura4. A two judge Bench this Court held thus:
"9...From the nature of injuries said to have been received by these accused persons, it would appear that the same were simple and minor ones. It is well settled that merely because the prosecution has failed to explain injuries on the accused persons, ipso facto the same cannot be taken to be a ground for throwing out the prosecution case, especially when the same has been supported by eyewitnesses, including injured ones as well, and their evidence is corroborated by medical evidence as well as objective finding of the investigating officer."
23. The same principle has been followed by another Bench of two judges in State of M P v Ramesh 5 where it was held that:
"11...Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries."
24. In Raghubir Singh v State of Rajasthan, a two judge Bench of this Court held thus:
"14...each and every injury on an accused is not required to be explained and more particularly where all the injuries caused to the accused are simple in nature (as in the present case) and the facts of the case have to be assessed on the nature of probabilities..."
Learned counsel for the applicant further submits that the injured accused persons Abu Bakar and Niyaj Ahmad would have received simple injuries then it will not be obligatory on the part of prosecution to explain but when the injured persons had received serious injuries on head and gun shot injury on elbow. The blood was oozing. From those injuries then it will be obligatory to explain on the part of the prosecution positively.
He submitted that the applicant is languishing in jail since 27.05.2020, hence he is entitled to be released on bail and he will not misuse the liberty of bail and will cooperate in the trial.
Learned counsel appearing on behalf of informant has submitted that the present accused was named in the first information report which was lodged promptly. He further submits that since all the accused persons were having common intention and common object in assaulting the complainant side then all the accused persons who have participated in the assault would be vicariously liable of act of the other accused persons. He also submits that the accused persons were aggressor and they had come to the door step of the complainant side and assaulted them without any provocation. He further submits that it will be decided at the stage of trial whether any incident is alleged by the accused persons has taken place, whether the accused persons were assaulted by the complainant side it will be decided by the trial court after taking evidence by both the sides.
Considering the overall facts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Lakshmi Singh and others vs. State of Bihar and other, Babu Ram and others vs. State of Punjab and Amarjeet Singh vs. State of Haryana, this Court thinks that eleven accused persons are said to have assaulted the complainant side after indiscriminate firing in which only three persons had sustained injuries on their persons, who later on, died in the hospital from the side of the complainant and the accused side had also received serious injuries, accused Niyaj Ahmad has also suffered gun shot injury in the incident and the injuries sustained by the accused side has not been explained by the prosecution. They ought to have been explained by the prosecution and since it seems that there is a cross version of the incident and it is very difficult to ascertain at this stage who was the aggressor and it will be decided at the stage of trial after taking evidence from both the sides; but without expressing any opinion on merits, this Court finds it to be a fit case for bail."
Learned counsel for the informant and learned AGA have vehemently opposed the prayer for bail of the applicant. Learned counsel for the informant has stated that the bail granted to the co-accused, Waseem, has been challenged before the Apex Court again and likely to be heard soon.
After hearing the rival contentions, this Court finds that there is no distinction of the role of the applicant with co-accused, Waseem. There are general allegations against all the accused persons named in the FIR. This Court has considered the fact that injury suffered by the applicant's side has not been explained by the prosecution.
After considering all facts and circumstances of the case the applicant deserves to be enlarged on bail for the reasons given in the order of bail of co-accused, Waseem, quoted herein-above.
Having considered the submissions of the parties noted above, finding force in the submissions made by the learned counsel for the applicant; keeping in view uncertainty regarding conclusion of trial; one sided investigation by police, ignoring the case of accused side; applicant being under-trial having fundamental right to speedy; larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Satendra Kumar Antil Vs. C.B.I. & Another, passed in S.L.P.(Crl.) No. 5191 of 2021, judgement dated 11.7.2022 and considering 5-6 times overcrowding in jails over and above their capacity by under trials and without expressing any opinion on the merits of the case, let the applicant involved in the aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that :-
(i) The applicant shall not tamper with the evidence or threaten the witnesses.
(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in Court. In case of default of this condition, it shall be open for the Trial Court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of his absence, without sufficient cause, the Trial Court may proceed against him under Section 229-A of the Indian Penal Code.
(iv) In case the applicant misuse the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the Court on the date fixed in such proclamation then the Trial Court shall initiate proceedings against him in accordance with law under Section 174-A of the Indian Penal Code.
(v) The applicant shall remain present in person before the Trial Court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the Trial Court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the Trial Court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
The court below is directed to conclude the trial against the applicant, as expeditiously as possible, preferably within a period of one year from the date of production of certified copy of this order.
Order Date :- 13.2.2023 Ruchi Agrahari