Allahabad High Court
Humanyun vs State Of U.P. on 16 August, 2023
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:164121 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34491 of 2023 Applicant :- Humanyun Opposite Party :- State of U.P. Counsel for Applicant :- Yogendra Pal Singh,Bhavya Sahai Counsel for Opposite Party :- G.A.,Saurabh Chaturvedi Hon'ble Samit Gopal,J.
1. Vakalatnama filed by Sri S. Shahnawaz Shah, Advocate on behalf of the first informant is taken on record.
2. Heard Sri Bhavya Sahai, learned counsel for the applicant, Sri S. Shahnawaz Shah, learned counsel for the first informant and Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.
3. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Humanyun, seeking enlargement on bail during trial in connection with Case Crime No. 143 of 2023, under Sections 147, 148, 149, 302, 307, 323, 325, 341, 352, 452, 504, 506, 34 I.P.C., registered at Police Station Partapur, District Meerut.
4. The first information report of the present case was lodged on 24.04.2023 by Mohsin against the applicant, Afaque, Aabad, Aurangjeb, Shahrukh, Afjal and unknown persons with the allegation that on 23.04.2023 he with his father, elder brother Amir were transporting chaff from there fields. When they were returning from the field with the tractor then on the tiraha in village near the house of anganbadi at the tiraha at about 6.30 pm Humanyun, Afaque, Aabad, Aurangjeb, Shahrukh and Afjal intentionally stopped their way and started abusing them and did immoral acts with them. As they were not giving way to them, the first informant and his persons told the 06 accused persons to give them way but they with great difficulty moved away. Subsequently they reached their home and were unloading the tractor trolley on which the accused persons armed with lathi, danda, farsa and other weapons with an intention to kill his family attacked them. They caught hold of his brother Aamir after which Afaque took out his countrymade pistol and fired upon his brother Aamir in his abdomen due to which he fell there, after he fell there and considering him to be dead he was again assaulted with an iron rod on his head to ensure that he died. Then his father Israr, the informant and his cousin sister Lavish were also assaulted with sharp weapons, lathi, danda who after receiving injuries fell down. On hearing the shouts lot of people collected after which on seeing Nawazish and Rashid coming the accused persons by extending threats and flashing their weapons ran away from the place. There were many other persons with the said 06 accused persons who also joined them in the assault who can be identified if brought. The injured were then taken by his family members and neighbours to Anand Hospital where doctor referred them to medical college after which they reached emergency of medical college where doctors declared his brother Aamir dead. His father and cousin sister are being treated in the hospital. The first information report has thus been lodged.
5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the role of firing upon the deceased Aamir is assigned to co-accused Afaque. It is argued that although in the first information report common and general role has been assigned to all the accused persons of assault but the first informant in his statement recorded under section 161 Cr.P.C. has confined the case of assault upon the injured persons to co-accused Shahrukh with a bat of baseball. It is argued that co-accused Afjal and Aurangjeb have been granted bail by a co-ordinate Bench of this Court vide orders dated 31.07.2023 and 08.08.2023 passed in Criminal Misc. Bail Application Nos. 33429 of 2023 and 34676 of 2023, the copy of the said orders have been produced before the Court which are taken on record. It is argued that there is no recovery of any incriminating material either from the possession or on the pointing out of the applicant. Paragraph 20 of the affidavit has been placed for the same. The applicant has no criminal history as stated in para 22 of the affidavit and is in jail since 29.04.2022.
6. Per contra, learned counsel for the first informant and learned counsel for the State vehemently opposed the prayer for bail and argued that applicant is named in the first information report and has been assigned the role of assault along with other co-accused persons. It is argued that three persons have received injuries. One of the persons has suffered two fractures on his body. It is argued that one person has died although the role of firing on him is assigned to co-accused Afaque. Learned counsel has argued that as such the applicant is involved in the present case. It is argued that Mohsin one of the injured in the X-Ray examination was found to have received two fractures one on the forearm and other on right shoulder but does not dispute that two co-accused namely Afjal and Aurangjeb have been granted bail by a co-ordinate Bench of this Court.
7. After having heard learned counsel for the parties and perusing the record, it is evident that common and general role has been assigned to the applicant along with six other co-accused and two unknown persons of assault. In so far as the role of firing on the deceased Aamir is concerned, the same is stated to be by co-accused Afaque. Co-accused Afjal and Aurangjeb have been granted bail by a co-ordinate Bench of this Court.
8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
9. Let the applicant- Humanyun, be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(v) 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 and the trial court may proceed against him under Section 229-A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
10. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
11. The bail application is allowed.
Order Date :- 16.8.2023 AS Rathore (Samit Gopal,J.)