Allahabad High Court
Amir Suhail vs State Of U.P. on 18 August, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:168173 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30028 of 2023 Applicant :- Amir Suhail Opposite Party :- State of U.P. Counsel for Applicant :- Mohammad Khalid,Imran Ullah Counsel for Opposite Party :- G.A.,Nitin Kumar,Rajendra Kumar Singh Hon'ble Rajeev Misra,J.
Heard Mr. Imran Ullah, the learned counsel for applicant, the learned A.G.A. for State and Mr. Nitin Kumar Singh, the learned counsel representing first informant.
This application for bail has been filed by applicant-Amir Suhail seeking his enlargement on bail in Case Crime No.53 of 2023, under Sections 302, 201, 120-B IPC, Police Station Barhapur, District Bijnor, during the pendency of trial.
Record shows that in respect of an incident which is alleged to have occurred on 22.03.2023, a prompt F.I.R. dated 22.03.2023 was lodged by first informant, namely, Ram Kumar Singh (father of the deceased), which was registered as Case Crime No.0053 of 2023, under Sections 302, 201 IPC, Police Station Barhapur, District Bijnor. In the aforesaid F.I.R., an un-known person has been arraigned as solitary accused.
The gravamen of the allegations made in the F.I.R. is to the effect that Mukesh Kumar, son of the first informant, had gone somewhere on 21.03.2023 at around 2.00 p.m. However, since then his whereabouts could not be located in spite of a hectic search having been made. Ultimately, the motorcycle of the deceased was found on 22.03.2023, at around 6.00 p.m., near the Nala at Badhapur-Kunjaita road. Accordingly, information regarding aforesaid was given. Subsequently, first informant received an information from the police station that dead body of son of the first informant is lying near Kureshi brick-kiln at village Abdullapur. The F.I.R. however concludes with the recital that the first informant has an apprehension that his son has been murdered.
After aforementioned F.I.R. was lodged on 22.03.2023, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. During course of investigation, Investigating Officer examined the first informant, namely, Ram Kumar Singh (fahter of the deceased) and other witnesses, namely, Rajeev Kumar, Sanjeev and Dhan Singh and recorded their statements under Section 161 CrPC. On the basis of the statements of the witnesses so examained, complicity of four persons, namely, Waseem, Hisamuddin, Hanisul and Amir came to surface. Subsequently, Swift Desire Car and the weapon of assault i.e. Chhaina (iron article) were recovered on the pointing out of co-accused-Waseem. Thereafter, statement of co-accused Waseem was recorded. In his confessional statement, this accused has disclosed that two other persons, namely, Hisamuddin and Hanisul had accompanied him in disposing off the dead body of the deceased. So far as applicant is concerned, only evidence which has emerged against the applicant is that he had dropped Hisamuddin and Hanisul on his motorcycle at some place. Consequently, the present applicant has been implicated for an offence under Section 120-B IPC.
It is apposite to mention here that after the dead body of the deceased was recovered, the inquest (Panchayatnama) of the deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as homicidal. Thereafter, 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 :-
"Ante-mortem injuries :-
1. Ligature mark on the front of neck on trachea below thyroid going backward and in horizontal shape 5 cm below left ear and 4.5 cm below right ear.
--In area 39 cm x 3.4 cm with fracture of Hyoid bone. Under cut section of ligature mark tissue on subcutaneous tissue ecchymosses present.
2. L/W on frontal area of the skull in area 11 cm x 3 cm X-brain deep with fracture of both frontal and parietal bones.
3. multiple small abrasion on right side lateral and lower abdomen in area 26 x 14 cm size varies from 2.5 cm x 1.5 cm to 0.5 x 0.5 cm."
In the opinion of autopsy surgeon, the cause of death of the deceased was asphyxia as a result of ante-mortem strangulation.
On the basis of above and other material collected during the course of investigation, Investigating Officer came to the conclusion that complicity of Waseem, Hisamuddin, Hanisul and Amir is established in the crime in question. He, accordingly, submitted the charge-sheet dated 29.05.2023, whereby above-mentioned accused have been charge-sheeted under Sections 302, 201, 120-B IPC.
Learned counsel for the applicant contends that applicant is innocent. Applicant is not named in the F.I.R. The present case is a case of circumstantial evidence and therefore there is no eye-witness of the occurrence. According to the learned counsel for applicant the complicity of an accused in a case based on circumstantial evidence is to be judged in the light of parameters laid down by the Supreme Court for inferring the guilt of an accused in a case based on circumstantial evidence in Sharad Birdhichand Sarda Vs. State of Maharashtra A.I.R. 1984 SC 2866. However, in the present case none of the parameters laid down in the aforementioned judgement are satisfied against the present applicant up to this stage. The only evidence that has emerged against the applicant is that he had dropped two of the co-accused, namely, Hisamuddin and Hanisul on his motorcycle at some place. As such, the role of the present applicant is that of conspirator in the crime in question. Learned counsel for applicant further contends that conspiracy is a closed door affair and therefore, subject to trial evidence. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. The applicant is in jail since 01.04.2023. As such he has undergone more than four and half months of incarceration. He therefore submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named accused, therefore, no indulgence be granted by this Court in his favour. The complicity of applicant in the crime in question is fully established as per the confessional statement of co-accused Waseem. Up to this stage, no explanation has come forward from the applicant as to why he dropped two other co-accused, namely, Hisamuddin and Hanisul on his motorcycle at the particular place. Another glorifying fact which has been pointed out by the learned A.G.A. is that applicant is the real brother of main accused Waseem. On the above conspectus, it is thus urged that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the leaned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that the present case is a case of circumstantial evidence therefore, there is no eye-witness of the occurrence, complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of parameters laid down in Sharad Birdhichand Sarda (supra), up this stage none of the parameters laid down in aforementioned judgement are prima facie satisfied against the applicant, however up to this stage the learned A.G.A. as well as the learned counsel representing first informant could not prima facie establish that the said parameters are fully satisfied against applicant, the only evidence that has emerged against applicant during the course of investigation is that applicant had dropped two of the co-accused, namely, Hisamuddin and Hanisul on his motorcycle at some place, the applicant has been held to be a conspirator of the crime in question, conspiracy is a closed door affair therefore subject to trial evidence, the applicant has not played an active role in the commission of the crime in question, considering the fact that since charge-sheet has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, the clean antecedents of the applicant, the period of incarceration undergone, but without making any comments on the merits of the case, the applicant has made out a case for bail. It is however clarified that other three co-accused namely, Waseem, Hisamuddin and Hanisul shall not be entitled to claim parity from this order.
Accordingly, the bail application is allowed.
Let the applicant-Amir Suhail, be released on bail in the aforesaid case crime number 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 which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails 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 I.P.C.
(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) 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.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 18.8.2023.
Rks.