Dismissed

Shakeeluddin @ Shakil Don v. State of U.P.

Allahabad HC5 Oct 2023BAIL/13699/2023

Case brief

AI extract

What is this about?

This bail application was examined as a third attempt after previous rejections. The applicant relied on a doctor's cross-examination statement suggesting injuries could be accidental, arguing it disproved the murder charge. The court held this was not conclusive evidence.

What did the court decide?

The bail application was rejected on the ground that no fresh material or ground was shown and the cross-examination statement was not conclusive.

Shakeeluddin @ Shakil Don Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:192373

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Court No. - 69

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13699 of 2023

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Applicant :- Shakeeluddin @ Shakil Don Opposite Party :- State of U.P. Counsel for Applicant :- Tripurari Pal,Prakash Veer Tripathi Counsel for Opposite Party :- G.A.,Amit Kumar,Ramanuj Saini

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Hon'ble Samit Gopal,J.

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List revised.

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Heard Sri Prakash Veer Tripathi, learned counsel for the applicant, Sri Arvind Kumar Sahu holding brief of Sri Amit Kumar and Sri Ramanuj Saini, learned counsels for the first informant and Sri Devendra Nath Mishra, learned counsel for the State.

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This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant- Shakeeluddin @ Shakil Don, seeking enlargement on bail during trial in connection with Case Crime No. 69 of 2021, under sections 147, 149, 302, 201 I.P.C., Police Station Bisauli, District Budaun.

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This is a third bail application. The first bail application of the applicant being Criminal Misc. Bail Application No. 24753 of 2021 (Shakeeluddin @ Shakil Don Versus State of U.P.) was rejected by Hon'ble Om Prakash-VII, J. (as he was then) vide order dated 04.10.2021. The second bail application of the applicant being Criminal Misc. Bail Application No. 52341 of 2021 (Shakeeluddin @ Shakil Don Versus State of U.P.) which was connected with two other bail applications was rejected by this Court by a common order dated 16.11.2022.

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Against the order dated 16.11.2022 passed in the bail application of the applicant, the applicant preferred a Special Leave to Appeal (Criminal) No. 1839 of 2023 (Shakeeluddin @ Shakil Don Versus The State of Uttar Pradesh) which was disposed of by the Apex Court vide order dated 17.02.2023 taking note of the submission of the learned counsel appearing

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for the petitioner therein that certain material favourable to the accused was not placed before the High Court while moving the bail application and as such he would move the High Court with the additional material to pray for bail.

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This third bail application has now been filed subsequently on behalf of the applicant.

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Learned counsel for the applicant has submitted that the only new ground is that the trial in the present matter has started in which the statement of P.W.-1 Dr. Prashant Gangwar has been recorded. He has placed para 33 of the affidavit in support of the bail application and Annexure No. 19 to the same being the said statement and while placing the same has argued that in the cross examination the doctor has categorically opined that looking to the nature of the injuries it appears that the injuries have been received in an accident. The cause of death appears to be due to shock and hemorrhage.

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Learned counsel for the applicant has placed page 118 of the paper book being the cross examination done of the said witness on behalf of the co-accused Fakharuddin @ Fakeera. It is argued that looking to the same, it is clear that the deceased received injuries in an accident and died and the prosecution story is totally concocted. It is argued that the applicant be thus released on bail.

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Per contra, learned counsel for the State and learned counsel for the first informant have vehemently opposed the prayer for bail and argued that insofar as the merits of the matter are concerned the first and second bail applications of the applicant have been rejected by detailed orders on merits by another Court and this Court. It is argued that merely by one line that too in the cross examination on behalf of some other co-accused the applicant cannot be granted bail as the same has to be tested by the trial court at the appropriate stage in the trial. It is argued that as such there is no fresh and new ground available to the applicant. The bail application be thus rejected.

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After hearing the counsel for the parties and perusing the record, it is apparent that the first bail application of the applicant was rejected by another Bench of this Court vide order dated 04.10.2021. The said order reads as under:

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"Exemption application is allowed.

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Heard Sri N. I. Jafri, learned Sr. Advocate assisted by Sri Tripurari Pal

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appearing for the applicant, Sri R. S. Tripathi, learned counsel appearing for the informant and learned A.G.A.

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This bail application has been filed by the applicant to enlarge him on bail in case crime no. 69 of 2021, under Sections 147, 149, 302, 201 IPC, Police Station Bisauli, district Budaun.

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Learned Sr. Advocate appearing for the applicant submits that the applicant is innocent and has not committed the present offence. It is further argued that although the applicant is named in the FIR but no specific role has been assigned against him. He has not participated in the commission of the crime. No missing report has been lodged on the part of the informant. Had the deceased been taken away by the applicant and other co-accused and he did not return to home, a missing report should have been lodged in the matter. It is also argued that information in this matter regarding recovery of the dead body of deceased was given by some Vikas Saxena and on that basis inquest was conducted against unknown person. Although at the time of post mortem dead body was identified and post mortem was conducted as the dead body of Salim. It is also argued that FIR was lodged on 02.03.2021 at belated stage. No plausible explanation has been given regarding delay. It is also argued that eye account witnesses, who claimed to have seen the occurrence, did not disclose this fact earlier. This fact itself shows that they were later on planted in this matter. Referring to the post mortem report as well as the facts mentioned in the FIR, it was further argued that incident in all probability would have taken place on 26.02.2021 itself, as is clear from the facts mentioned in the post mortem report. It is also argued that none has seen the incident. Due to this reason the said eye account witnesses did not disclose this fact at initial stage. Referring to the inquest report it was also argued that inquest was prepared as an accidental case. Deceased died in other manner. Applicant was implicated in this matter on the basis of false facts. Recovery is also false, planted and is not supported with independent witness. All the criminal cases shown as criminal history have been duly explained and applicant is on bail in those cases. Referring to the entire facts and circumstances it was further argued that no prima facie case is made out against the applicant. Applicant is in jail since 03.04.2021.

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Learned A.G.A. as well as learned counsel for the informant argued that although FIR was lodged on 02.03.2021 itself showing that informant came to know the entire facts of the case on that day itself. There are eye account witness Farooq and Ishtiaq. They have supported the prosecution case. Medical version fully supports the oral version. Time of death disclosed in the post mortem report tally with the time disclosed by the eye account witnesses. It is also argued that a prima facie case is made out. Having considered the rival submissions, going through the entire record and also taking into consideration the contents of the FIR as well as the fact that medical version fully supports the oral version as also there are eye account witnesses of the case and without touching the merits of the case, the court is of the opinion that applicant has not made out a case for bail.

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Bail Application is hereby rejected."

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The second bail application of the applicant alongwith two other bail applications were rejected by this Court vide order dated 16.11.2022. The said order reads thus:

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"Heard Sri Anil Srivastava, learned Senior Advocate, assisted by Sri Tripurari Pal, learned counsel for both the applicants, Sri Anil Kumar, Advocate holding brief of Sri Mohit Singh, learned counsel for the first informant in both the bail applications, Sri Shashi Kant Pandey, learned counsel for the State and perused the record.

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These three bail applications are connected together as they arise out of the same crime number. Criminal Misc. Bail Application No. 33390 of 2021 (Shane Nabi vs. State of U.P.) is the first bail application. The same has been nominated to this Bench vide order dated 14.3.2022 of Hon'ble The Chief Justice. Criminal Misc. Bail Application No. 46383 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.) is the second bail application. The first bail application of the applicant- Fakharuddin @ Fakeera was rejected by this Court vide order dated 16.8.2021 passed in Criminal Misc. Bail Application No. 29265 of 2021 (Fakharuddin @ Fakeera vs. State of U.P.). Criminal Misc. Bail Application No. 52341 of 2021 (Shakeeluddin @ Shakil Don vs. State of U.P.) is the second bail application. The first bail application of the applicant Shakeeluddin @ Shakil Don being Criminal Misc. Bail Application No. 24753 of 2021 (Shakeeluddin@Shakil Don vs. State of U.P.) was rejected by Hon'ble Om Prakash-VII,J. (as he was then) vide order dated 4.10.2021. These three bail applications under Section 439 of Code of Criminal Procedure have been filed by the applicants Shane Nabi, Fakharuddin @ Fakeera and Shakeeluddin @ Shakil Don, seeking enlargement on bail during trial in connection with Case Crime No. 69 of 2021, under Sections 147, 149, 302, 201 I.P.C., registered at P.S. Visauli, District Budaun. The prosecution case as per the F.I.R. lodged on 2.3.2021 at 17:40 hours by Aslam against Abrar, Shakeeluddin@Shakil Don, Shane Nabi, Fakhruddin@Fakeera and Vikaruddin, is that Saleem the brother of the first informant was a friend of Abrar resident of village- Bhawanipur Kheroo, Police Station Sahaswan, who was called on 27.2.2021 at 7.00 am for purchasing buffalos in Haryana and was taken away. On the same day at about 09.00 am Shakeeluddin@ Shakil Don, Shane Nabi, Fakharuddin @ Fakeera and Vikaruddin along with two unknown persons assaulted him with lathi and danda, which was seen by Istiyak and Farooq. The dead body of Saleem is lying near Ashirvad Cold Store. The same was recovered and post mortem has been done. The accused persons are partners in the business of sale and purchase of buffalos. They had taken Rs.3 lakh by cheating from Saleem. Saleem used to ask about refund of money which was not returned by them and for misappropriating it they have murdered him. The First Information Report was thus lodged. The post mortem of Saleem was done on 28.2.2021 at 2:55 pm and the doctor found three lacerated wounds, one abraded contusion and one abrasion on his body. Fracture of left ulna bone was also seen. Scalp was lacerated and there was a fracture of left perietal bone. Cause of death has been opined as shock and haemorrhage due to anti mortem injury.

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During investigation statements of Farooq and Istiyak were recorded which have been placed before the Court which are at page nos. 37 and 40 respectively to the paper book of the accused/applicant Shane Nabi. Learned counsel for the applicants has argued that the applicants have been falsely implicated in the present case. It is argued that identically placed co-accused Vikaruddin has been granted bail by a co-ordinate Bench of this Court vide order dated 18.10.2021 passed in Criminal Misc. Bail Application No. 31496 of 2021 (Vikaruddin vs. State of U.P.). The copy of said bail order has been placed before the Court which is annexure no. 2 to the affidavit in support of bail application of the applicant- Fakharuddin @ Fakeera. It is argued that the case of the applicants are identical to that of the co-accused Vikaruddin who has been granted bail. While arguing the bail of the applicant Shane Nabi and placing annexure no. 8 to the said bail application, it is argued that although there is an alleged recovery of a danda and a pant which is alleged to be of the deceased, on the pointing out of the applicant Shane Nabi but the same is on 17.4.2021 which is after about 50 days of the incident. It is argued that the recovery as alleged is a planted and false recovery.

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Per contra, learned State counsel opposed the prayer for bail and argued that the bail of identically placed co-accused Fakharuddin @ Fakeera was rejected by this Court on merits. It is argued that there is no fresh and new ground shown in so far the bail of Fakharuddin @ Fakeera is concerned. The applicants have been assigned the role of assault on the deceased with lathi and danda. There are eye witness account. The injuries as received by the deceased corroborate with the prosecution case. It is further argued that although the order of co-accused Vikaruddin is to the effect that he has been granted bail but the order states that there is recovery made on the pointing out of co-accused Shakeeluddin @ Shakil Don and Fakharuddin@Fakeera, but as a matter of fact the recovery is on the pointing out of co-accused Shane Nabi of a danda and pant of the deceased. Annexure no. 8 is the recovery memo to the bail application of the said accused. It is argued that even on that count the case of Shane Nabi is showing his implication in the matter. It is prayed that the prayer for bail be rejected. It is further argued that even no fresh and new ground has been shown and argued in the bail of Shakeeluddin@ Shakil Don.

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After having heard learned counsels for the parties and perusing the records, it evidence that in so far as case of Fakharuddin @ Fakeera and Shakeeluddin@Shakil Don is concerned, no new and fresh ground is shown. The bail application of the applicant Fakharuddin @ Fakeera is rejected.

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The bail application of the applicant Shane Nabi is rejected on the ground of role and participation in the incident which has even been stated by the two eye witnesses Farooq and Istiyak coupled with the fact of recovery of incriminating material on his pointing out.

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The bail application of the applicant Shakeeluddin @ Shakil Don is also rejected on the ground that it is a second bail application and there is no fresh and new ground shown on record."

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Subsequent the order rejecting the second bail application of the applicant was challenged before the Apex Court in which the following order was passed on 17.02.2023. The said order reads as under:

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"Mr. Anupam Mishra, learned counsel for the petitioner submits that certain material favourable to the accused was not placed before the High Court while moving the bail application. Accordingly, he submits that the petitioner would move the High Court with the said additional material to pray for bail.

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Taking note of the above submission, the petition is disposed of. Pending application(s), if any, shall stand disposed of."

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The sole ground as argued and placed by placing para 33 of the affidavit in support of the bail application and Annexure No. 19 being the statement of P.W.-1 Dr. Prashant Gangwar is that the injuries received by the deceased appear to have been received in an accident while he was being cross examined on behalf of the co-accused Fakharuddin @ Fakeera. Insofar as the cross examination on behalf of the applicant is concerned the same is at page 119 of the paper book and the relevant line reads as under;

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"UKT PRAKAR KI CHOTEN ACCIDENT ME BHI AA SAKTI HAIN" (The aforesaid injuries can also come in an accident).

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The reading of the said line and cross examination on behalf of the applicant shows that the doctor has merely stated that the injuries of such nature can also come in an accident. The same thus is not conclusive that the injuries of the deceased Saleem have been received in an accident. Merely by a line in the cross examination done on behalf of some other co-accused the applicant cannot gain advantage of the same. The doctor has supported the prosecution case entirely as per the medical evidence in his examination-in-chief. No ground exists to grant bail to the applicant.

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Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected. Order Date :- 5.10.2023/K.K. Maurya

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(Samit Gopal,J.)

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Digitally signed by :- KAMLESH KUMAR MAURYA High Court of Judicature at Allahabad

Shakeeluddin @ Shakil Don v. State of U.P.

Case brief

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Shakeeluddin @ Shakil Don v. State of U.P.

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