Sameer Vs State of U.P.

Neutral Citation No. - 2023:AHC:112975

Court No. - 74

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19032 of 2023

Applicant :- Sameer Opposite Party :- State of U.P. Counsel for Applicant :- A.C.Srivastava,Vinod Kumar Tripathi Counsel for Opposite Party :- G.A.,Umesh Singh

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Hon'ble Sameer Jain,J.

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Heard Sri A.C. Srivastava, learned counsel for the applicant; Sri Umesh Singh, learned counsel for the informant and Sri Jhamman Ram, learned AGA for the State-respondent.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No. 637 of 2021, under Sections 147, 148, 452, 307, 504, 302 IPC, Police Station Kairana, District Shamli, during pendency of the trial in the court below.

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FIR of the present case was lodged against the applicant and four others and according to the FIR on the issue of mobile phone, applicant and other accused persons after entering in the house of the informant made assault upon his son and his daughter in law through wooden sticks, iron rods and kharpali (a sharp edged weapon) and due to the assault made by them son of the informant, namely, Dilshad sustained serious injures on his head.

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Learned counsel for the applicant submitted that initially FIR of the present case was lodged under sections 307, 308 IPC and other relevant sections but when the deceased died after about 12 days then case was converted under sections 302, 307 IPC. He further submitted that although incident is said to have been taken place on 30.11.2021 but FIR was lodged on 2.12.2021. He further submitted that on the basis of general allegation, applicant has been roped in the present matter alongwith four others and in fact, applicant neither participated in the incident nor he ever caused any injury to either deceased or injured.

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He further submitted that although in the incident, it is alleged that wife of the deceased also sustained injuries but surprisingly her statement was recorded by the Investigating Officer after six months and this fact clearly suggests that actually no one witnessed the real incident and due to enmity subsequently after two days, applicant alongwith others has been implicated in the

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present matter.

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He further submitted that even from the statement of Jahida, the injured it appears that she also made general allegation against all the accused persons including applicant. He further submitted that not even the weapon has been assigned to any of the accused including applicant.

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Learned counsel further pointed out that bail of three co-accused Nahid, Bhura and Talib has been dismissed by two co-ordinate Benches of this Court vide orders dated 14.9.2022 and 17.1.2023 passed in Crl. Misc. Bail Application No. 17148 of 2022 and 20779 of 2022 and 36366 of 2022. He placed these bail rejection orders of co-accused persons which are taken on record.

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He next submitted that law is settled that there can be no parity of the bail rejection order, therefore, independently this Court can decide the bail application of the applicant.

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He further submitted that applicant is having no criminal history and he is in jail in the present matter since 6.12.2021, i.e. almost one and a half years.

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Per contra, learned AGA as well as learned counsel for the informant vehemently opposed the prayer for bail and submitted that applicant alongwith other accused persons after entering in the house of informant made assault and due to the assault made by them brother of the informant and his bhabhi sustained injuries and due to the injuries, subsequently, his brother died.

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They next submitted that from the perusal of the FIR as well as statements of the witnesses recorded during investigation, it is evident that applicant participated in the incident.

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They further submitted that bail application of three similarly placed co-accused persons have already been dismissed by two coordinate Benches of this Court after considering entire evidence available on record and therefore, applicant should not be released on bail.

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I have heard learned counsel for the parties and perused the record of the case.

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Applicant alongwith four others was nominated in the FIR and as per allegation, he and other accused persons after entering in the house of the informant made assault and due to the assault made

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by them, brother of the informant and his bhabhi sustained injuries. Initially, FIR of the present case was lodged under sections 307, 308 IPC alongwith other relevant sections but after the death of brother of informant, case was converted under section 302 IPC.

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From perusal of the FIR, although it reflects that only general role has been assigned to all the accused persons and when during investigation, statements of some eye-witnesses were recorded then they also attributed general role to the accused persons including applicant but even from FIR and from their statements, it appears that all the accused persons were having wooden sticks, iron rod and Kharpali (a sharp edged weapon) and had participated in the incident.

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Further, during investigation when the statements of eye witness Mehrban, Aslam and Intzar were recorded then they specified the weapon to the applicant and witness Mehrban stated that co-accused Bhura, Sehzad and Sameer who were having wooden sticks and iron rod made assault upon the deceased due to which, he fell on the ground and became unconscious and similar statements were given by witnesses Intzar and Aslam, therefore, from the perusal of the statements of above noted three witnesses, it appears that they have attributed specific role of causing injuries to applicant and co-accused Shehzad and Bhura to the deceased.

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Further although it appears that the statement of the wife of deceased i.e one of the injured of the case was recorded by the Investigating Officer on 11.7.2022 i.e after more than seven months but merely on this ground, no benefit can be extended to the applicant, at this stage, as apart from Smt. Jahida, wife of the deceased there are number of other witnesses and they clearly stated that applicant actively participated in the alleged crime and caused injuries to the deceased.

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Although, there is no parity of bail rejection order but it is a fact that bail application of three accused person, namely, Nahid, Bhura and Talib has been dismissed by co-ordinate Bench of this Court on merit after considering entire facts of the case and case of co-accused Nahid and Talib were even on better footing than applicant.

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Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is not entitled to be released on bail.

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Accordingly, the instant bail application stands rejected .

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It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.

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Order Date :- 23.5.2023

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Ankita

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Digitally signed by :- ANKITA SRIVASTAVA High Court of Judicature at Allahabad

Sameer v. State of U.P.

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Sameer v. State of U.P.

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