Single bench order rejecting bail applications of three applicants accused of murder and kidnapping. Court rejected arguments regarding FIR delay, witness reliability, and circumstantial evidence findings. Denied bail citing strong prosecution evidence and interlinked criminality.
Bail applications of Mohd. Yasir, Sher Ali, and Ausan Pasi rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Court No. - 66
1. Case :- CRIMINAL MISC. BAIL APPLICATION No. - 940 of 2022
Applicant :- Ausan Pasi Opposite Party :- State of U.P. Counsel for Applicant :- Satya Dheer Singh Jadaun Counsel for Opposite Party :- G.A.,Ramesh Kumar Mishra
2. Case :- CRIMINAL APPEAL No. - 2648 of 2021
Appellant :- Sher Ali Respondent :- State of U.P. and Another Counsel for Appellant :- Mohd. Abrar Khan,Harinank Mauli Vikram Dwivedi,Harish Chandra Mishra,Imran Ullah
Counsel for Respondent :- G.A.,Amit Kumar Srivastava,Ramesh Kumar Mishra
3. Case :- CRIMINAL APPEAL No. - 2924 of 2021
Appellant :- Mohd. Yasir Respondent :- State of U.P. and Another Counsel for Appellant :- Mohd. Abrar Khan,Rajrshi Gupta Counsel for Respondent :- G.A.,Amit Kumar Srivastava,Ramesh Kumar Mishra Hon'ble Rajeev Misra,J.
alleged to be present at the time and place of occurrence being passengers of the said four wheeler.
"(i) L/W present transversely over chin 8cm x 2cm x muscle deep. (ii) Transverse L/W over mid abdomen 3.0cm x 2cm x cavity deep with intestine propping out.
(iii) Contusion present over neck and nose and mouth 1.0cm x 8cm size with cloth thrust in both nostrils as well as mouth and tied around mouth.
Deep dissection of mouth and neck tissues shows ecchymosed around tissue."
in the crime in question. Thereafter, Investigating Officer arrested Mohd. Yasir on 13.12.2020. He thereafter arrested Ranjit Dhobi and Kallu @ Atiq on 18.12.2020. Sher Ali surrendered before court below on 18.12.2020. Thereafter on 05.01.2021, he arrested Firoz @ Mantri @ Mitthu and Kallu Kunjra. This was followed by the arrest of Ujar Ahmad on 23.02.2021. On his pointing the four wheeler used in the crime was recovered and was identified as Tavera Car bearing Registration No. U.P. 65 AT 6617. Subsequent to above, not named but mentioned in the F.I.R. namely Ausan Pasi was arrested on 02.06.2021.
for the applicant- Ausan Pasi, it is apposite to mention here that co-accused Kallu Kunjada @ Naushad Ahmad has been enlarged on bail, vide order dated 15.06.2021, Ujair Ahmad has been enlarged on bail, vide order dated 14.07.2021, Mohd. Firoz Khan @ Mantri @ Mitthu and Kallu @ Ateek have been enlarged on bail, vide order dated 15.07.2021. Copy of above orders has been brought on record from pages-91 to 99 of the paper book.
2019 SC 2866 , which reads as under:-
"8. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely. [See Apren Joseph v. State of Kerala, (1973) 3 SCC 114; Mukesh v. State (NCT of Delhi), (2017) 6 SCC 1].
a case based on circumstantial evidence in Sharad
Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 . He has referred to paragraphs- 151, 153 and 158 of the aforesaid judgement. Same are reproduced herein under:-
"151. Before discussing the cases relied upon by the High Court, we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Vs. State of Madhya Pradesh, 1952 SCR 1091 : (AIR 1952 SC 343).This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail Vs. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal Vs. State of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant's case (at pp.345-46 of AIR) (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
158. It will be seen that this Court while taking into account the absence of explanation or a false explanation did hold that it will
amount to be an additional link to complete the chain but these observations must be read in the light of what this Court said earlier, viz., before a false explanation can be used as additional link, the following essential conditions must be satisfied:
(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved.
(2) the said circumstance point to the guilt of the accused with reasonable definiteness, and
(3) the circumstance is in proximity to the time and situation."
applications for bail. As such, the delay in lodging the F.I.R. stands duly and sufficiently explained. Resultantly the delay in lodging the F.I.R. cannot be said to be fatal to the prosecution case.
This by itself is an incriminating circumstance and points at the guilt of the accused Mohd. Yasir. No attempt has been made by applicant- Mohd. Yasir to explain the aforesaid incriminating circumstance. The post-mortem of the body of deceased was conducted on 14.12.2020. The doctor, who conducted autopsy of the body of deceased, has opined that death of deceased had occurred above 5-6 days ago. This also corroborates the prosecution story that husband of the first informant namely Ram Badan was abducted on 08.12.2020 i.e. 5-6 days before lodging of the F.I.R. The four wheeler used in the kidnapping of deceased was subsequently recovered on the pointing of not named but charge-sheeted accused Mohd. Ujair. The bloodstained brick by which the deceased is alleged to have been assaulted on the pointing of Mohd. Yasir and also the recovery of plain earth as well as earth mixed with blood from the place of occurrence on the pointing of named accused Mohd. Yasir, clearly establish the commission of crime by aforesaid applicants. Presence of accused Mohd. Yasir in the four wheeler used in the crime is also established from the record.
the labourers, nor did he return the money to the owner of brick-kiln, Mohd. Yasir. It was with the intention of recovering the aforesaid amount that the deceased was first kidnapped and thereafter murdered. The deceased was thus last seen in the company of aforesaid applicants. Named accused Ausan Pasi facilitated in disclosing the location of the deceased who was travelling in the company of Ram Bharose. According to Mr. Amit Srivastava, the learned counsel for first informant, the theory of last seen is squarely applicable against applicants- Mohd. Yasir, Sher Ali and Ausan Pasi. As per the statements of the witnesses, namely, Ram Bharose (eye-witness) and Rita Devi (first informant) named accused Ausan Pasi called Ram Badan and on his disclosing his whereabouts, the deceased was kidnapped. It has also come in evidence (in the statement of Ram Bharose) that named accused/applicant Sher Ali (who was also travelling in the four wheeler got out of the same on spotting the deceased alongwith Ram Bharose. He thereafter first assaulted the deceased and thereafter dragged him in the car (Tavera) in which accused Mohd. Yasir along with others was sitting.
Khan, the learned counsel for applicant- Mohd. Yasir; Mr. Imran Ullah, the learned Counsel for applicant- Sher Ali; Mr. Satya Dheer Singh Jadaun, the learned counsel for applicant- Ausan Pasi; the learned A.G.A. representing State and Mr. Amit Kumar Srivastava, the learned counsel for first informant, upon evaluation of the submission and counter submissions urged by counsel for the parties, the conspectus of facts that have emerged on record, the complicity of applicants accusations made but without making any comments on the merits of the case, this Court does not find any sufficient or good ground to enlarge the applicants on bail.
Order Date :- 25.4.2022 Saif
Digitally signed by SHAIKH SAIF ABDIN Date: 2022.04.27 12:09:52 IST Reason: Location: High Court of Judicature at Allahabad
3 issues framed by the court
Whether to grant bail to applicants accused in a murder and kidnapping case given credible recovery and post-mortem evidence.
Whether the delay in lodging the FIR invalidates the prosecution case against the applicants.
Whether the principle of parity with co-accused who were on bail entitles these applicants to bail.
Colour shows how this judgement treated each authority
P. RajagopalRelied on¶30
P. Rajagopal Vs. State of Tamil Nadu, AIR 2019 SC 2866 · Who else cites this
Sharad Birdhichand SardaApplied¶36
Sharad Birdhichand Sarda Vs. State of Maharashtra, AIR 1984 SC 1622 · Who else cites this
Manumath PadmanabhanReferred¶32
Manumath Padmanabhan Vs. State of Madhya Pradesh, (1969) 3 SCC 114 · Who else cites this
Mukesh v. State (NCT of Delhi)Referred¶32
Mukesh v. State (NCT of Delhi), (2017) 6 SCC 6 · Who else cites this
Neeru YadavApplied¶58
Neeru Yadav Vs. State of U.P., 2016 (15) SCC 422 · Who else cites this
Ausan Pasi
Sher Ali
Mohd. Yasir
State of U.P.
Sushil Kant Mishra
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
