Allowed

Shamshad v. State of U.P.

Allahabad HC21 Apr 2022BAIL/2703/2022

Case brief

AI extract

What is this about?

In a criminal bail application under Sections 302 IPC regarding a premeditated murder and robbery, the High Court allowed bail to the applicant who was not named in the FIR, was arrested later, and whose complicity was established through a subsequent confession. The Court observed that coordinate benches had granted bail to co-accused persons.

What did the court decide?

The applicant Shamshad was released on bail by furnishing a personal bond with two sureties in an amount to be fixed by the concerned court.

Shamshad Vs State of U.P. — Bail and Remand | Allahabad HC (2022)

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2703 of 2022

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Applicant :- Shamshad Opposite Party :- State of U.P. Counsel for Applicant :- Sanjay Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Mohd. Faiz Alam Khan,J.

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Heard Shri Sanjay Mishra, learned counsel for the accused/applicant as well as learned A.G.A. for the State and perused the record.

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This bail application has been moved by the accused/applicant- Shamshad for grant of bail, in Case Crime No. 173 of 2013, Sessions Trial No. 136 of 2014, under Sections 394, 302, 411 IPC, Police Station Kalyanpur, District Fatehpur, during trial.

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Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication and the applicant has been dragged in this case only on the basis of alleged arrest with regard to the criminal case.

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It is also submitted that the applicant was not named in the first information report which was lodged on 2.12.2013 at 7.30 A.M. pertaining to an incident which has occurred in the intervening night of 1/2.12.2013, wherein one Virendra Singh @ Monti has been done to death in the process of commission of robbery wherein large amount of jewelery and other valuable items including Saris etc. were looted. The death of the deceased according to the postmortem report has been caused on account of ante-mortem firearm injury.

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It is vehemently submitted on behalf of the applicant that on 20.1.2014, after many days of the incident, the applicant is shown to have been arrested by the police along with coaccused persons, namely, Naseem and Avanish and from their possession apart from firearms, Rs. 1,00,000/- each from the applicant and Naseem and Rs. 87,000/- from co-accused Avanish were shown to have been recovered and it is stated that all these three accused persons had confessed that money recovered from them is pertaining to an incident of loot committed by them at village Baraura. In the confessional statement recorded by the police the applicant and other coaccused persons have also confessed their involvement in three other incidents of robbery and loot and also that the articles/

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jewelery looted in these incidents were sold by them and the money received from the selling of such jewelery and articles has been spent. The instant applicant, namely, Shamshad was again stated to have been interrogated by the Investigating Officer and he confessed to have been involved in the instant incident along with co-accused Naseem and Avanish and further confessed that he caused the death of the deceased by firing a gun shot from the country made pistol on 29.12.2013 and one Sari and Blouse is shown to have been recovered on his pointing out, which was also stated to have been identified by the informant and other ladies of the informant's side.

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Highlighting the above facts, it is vehemently submitted that the confession of the instant applicant has been recorded after many days of his arrest on 20.1.2014 and the sari and blouse which is shown to have been identified by the informant and his family could not be believed in absence of any independent witnesses and also that the same has been alleged to have been recovered from an open area.

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It is also submitted that apart from the confessional statement of the applicant and recovery of a sari a nd a blouse (which is doubtful), there is no any other iota of evidence which may connect the instant applicant with the crime and the confessional statement recorded in the custody of the police by the applicant could not be believed by virtue of the bar contained under Section 26 of the Indian Evidence Act.

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It is further submitted that applicant belongs a very poor family and he is in jail in this case for the last more than 8 years i.e. since 20.1.2014. The trial is going on before the court below and the informant of the case has also been testified before the trial court and he has not identified the applicant as one of wrong doer. The criminal history of 7 cases have been lodged against the applicant, however, out of 7 cases, three cases (apart from the instant case) have been slapped against the applicant by his arrest in the instant case and the rest cases are pertaining to Section 3/25 Arms Act and N.D.P.S. Act and the applicant is not a convict.

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It is further submitted that identically placed co-accused persons Avanish and Naseem have been granted bail by the Coordinate Benches of this Court, vide orders dated 14.8.2014 and 7.10.2015 passed in Criminal Misc. Bail Application Nos. 25843 of 2014 and 35287 of 2015, respectively.

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Learned A.G.A., on the other hand submits that having regard to the heinousness of the offence of the crime, which has been committed, the applicant is not entitled to be released on bail.

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Having heard learned counsel for the parties and having perused the record, it is evident that the applicant was not named in the first information report, his complicity in the instant crime has been found when he was arrested on 20.1.2014 and on a confessional statement being made in the custody of the police at the time of his arrest his complicity was found in three other cases. Some days after the arrest of the applicant in the instant case a confessional statement of the applicant was recorded by the Investigating Officer, wherein he had confessed to have committed the instant crime with the help of co-accused persons, namely, Naseem and Avanish and a sari and a blouse allegedly looted in the incident was also shown to have been recovered on his pointing out. It has been vehemently submitted by learned counsel for the applicant that confessional statement of applicant made in police custody could not be proved against the applicant by virtue of bar contained under Sectrion 26 of Indian Evidence Act and the sari and blouse which is shown to have been recovered on the pointing of applicant is also not believable in absence of any independent witness. The identically placed co-accused persons, namely, Naseem and Avanish have been granted bail by the Coordinate Benches of this Court. It is also submitted that informant of the case has been testified before the court below and he has not identified the instant applicant. The applicant is in jail in this case for the last 8 years and only one prosecution witness has been testified so far before the trial court and there is no hope that the trial of the case may be concluded in near future. The presence of the applicant could be secured before the trial court by placing adequate conditions.

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Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits and demerits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is allowed.

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Let the applicant- Shamshad involved in the aforesaid case be released on bail on furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-

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(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

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(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

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Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case.

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Order Date :- 21.4.2022 Muk

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Digitally signed by MOHD UMAR KHAN Date: 2022.04.22 09:52:36 IST Reason: Location: High Court of Judicature at Allahabad

Shamshad v. State of U.P.

Case brief

What is this about?

What did the court decide?

Shamshad v. State of U.P.

Case brief

What is this about?

What did the court decide?

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