Zuber Khan Vs State of U.P. Thru. Prin. Secy. Home, Lko.

Neutral Citation No. - 2024:AHC-LKO:38947

Court No. - 19

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2829 of 2024 Applicant :- Zuber Khan Opposite Party :- State Of U.P. Thru. Prin. Secy. Home, Lko. Counsel for Applicant :- Jyoti Rawat,Ram Samujh Rawat Counsel for Opposite Party :- G.A.,Alok Pandey Hon'ble Subhash Vidyarthi,J.

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Heard Smt. Suniti Sachan & Ms. Jyoti Rawat, learned counsel for the applicant, Sri Anant Pratap Singh, learned A.G.A. for the State and Sri Alok Pandey, the learned counsel for the informant.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No.209 of 2023, under Sections 302, 120-B, 201 I.P.C., registered at Police Station Tarun, District Faizabad/Ayodhya.

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The aforesaid case has been registered on the basis of an F.I.R. lodged on 11.08.2023 at 22.20 hrs. against the applicant and one Naushad Ali alleging that a civil litigation was going on between the father of the informant Sri Ram Tirath Tiwari and co-accused Naushad Ali which was decreed in favour of the informant's father. The co-accused Naushad Ali has filed an appeal against the decree. Having no hope of success in the appeal Naushad Ali entered into a conspiracy with the applicant for killing the informant's father and when the informant's father was going to a barber's shop at about 9.00 a.m. on 11.08.2023, Zuber Ahmad hit him with a four wheeler vehicle due to which he got injured and fell down. The incident was witnessed by the informant's mother (the deceased's wife) and one Surendra Tiwari as well as several other persons present nearby. The applicant went away speedily with the vehicle while saying that it appeared that the informant's father got saved and he will kill him some other day. The informant's

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father had suffered serious injuries on various parts of his body and his left leg got fractured. He was taken to the district hospital where he died during treatment at 3.18 p.m. on 11.08.2023.

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The postmortem examination report mentions numerous injuries of contusions, abrasions and traumatic swelling on the entire body of the deceased and the cause of death has been opined to be shock and hemorrhage due to ante mortem injuries.

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A copy of the inquest report has been annexed with the affidavit filed in support of the application for bail as also with the counter affidavit filed by the State. The inquest proceedings were witnessed by the informant Ravi Shankar Tiwari, Surendra Tiwari (who is mentioned in the F.I.R. as an eye witness of the incident), Janardan Dubey, Praveen Dubey and Krishna Kant and all of them stated that the informant's father died due to injuries suffered in a road accident. The inquest report mentions that the information of the incident was given to the police at 16.59 hrs. on 11.08.2023 by a Ward Boy.

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In the affidavit filed in support of bail application it has been stated that the applicant is innocent and he has been falsely implicated in the present case. In para 24 of the affidavit the applicant's involvement in two previous cases has been shown in both of which he has been acquitted. After the applicant was arrested in the present case he has been implicated in another case bearing Case Crime no.213 of 2023, under Section 307 I.P.C. and Sections 3/25, 5/27 Arms Act, Police Station Tarun, District Ayodhya.

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In the statement recorded under Section 161 Cr.P.C. the

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informant reiterated the F.I.R. version and stated that the incident was witnessed by his mother Urmila Devi and one Surendra Tiwari besides some other persons. The witness Surendra Tiwari stated that the deceased was his uncle. At the time of the incident he and the deceased's wife were standing at the gate of the house and the deceased had gone to a short distance from the house when the applicant hit him while driving the vehicle at a fast speed on the wrong side of the road. The witness Surendra Tiwari and the deceased's wife and several other persons ran to save him but the applicant went away with the vehicle while saying that perhaps the informant's father got saved but he will not be safe next time.

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The informant has also filed a counter affidavit opposing the bail application annexing therewith copies of documents related to civil litigation between the parties. The applicant has filed a rejoinder affidavit to both the counter affidavits filed by the State as well as the informant.

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The learned counsel for the informant has vehemently opposed the bail application and he has submitted that in para 7 of the affidavit filed in support of the bail application it has been stated that the applicant is not named in the F.I.R. This statement is incorrect and it was highlighted in para 2 of the counter affidavit filed by the informant. However, in the rejoinder affidavit merely this much has been stated that the applicant is innocent and he has not committed any offence and he has been falsely implicated in the case due to enmity between the parties.

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The averments made in the affidavit filed in support of the bail application that the applicant is not named in the F.I.R. is incorrect on the face of the record as the applicant is named as

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accused no.1 in the F.I.R. The learned counsel for the applicant admits the mistake occurred in drafting the affidavit and she tendered an unconditional apology for the same, which is accepted.

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It appears from the material placed before the court at this stage that the incident occurred at 9.00 a.m. on 11.08.2023. As per the F.I.R. version, the incident was witnessed by the mother of the informant, who is the deceased's widow, and Surendra Tiwari, who is the deceased's nephew besides several other villagers. It is also alleged that the applicant had stated immediately after the incident that it appears that the victim got saved and he will be killed in future. The deceased was taken to the district hospital where he died during treatment at 3.18 p.m. on the same day. The information of the death of the informant's father was given to the police by a Ward Boy at 16.59 hrs. The inquest started at 17.35 hrs. on 11.08.2023. The inquest proceedings were witnessed by five persons including the informant Ravi Shankar Tiwari and one of the alleged eye witnesses of the incident Surendra Tiwari. All the witnesses stated that the deceased died due to injuries suffered in a road accident and all of them signed the inquest report. The F.I.R. was lodged at 22.20 hrs. on 11.08.2023 i.e. after more than 13 hours since occurrence and after about five hours since the death of the informant's father. A property dispute is going on between the informant's family and the co-accused Naushad Ali. The property dispute between the parties can be a motive for commission of incident but it can also be a motive for false implication of the opponent.

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The fact that the deceased's wife and informant had themselves witnessed the incident and yet they chose not to lodge the F.I.R. promptly, even after death of the deceased the

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intimation of his death was given to the police by a Ward Boy and not by any member of his family and no person including the informant and the so called eye witness Surendra Tiwari stated during inquest proceedings that the deceased had been killed and all of them stated that the deceased died in a road accident and it was only after about five hours that the F.I.R. was lodged stating that the deceased had been deliberately killed by hitting him by a vehicle create a prima facie suspicion against the prosecution story.

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Having considered the aforesaid facts and circumstances of the case and without making any further observation, which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.

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Accordingly, this bail application stands allowed .

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Let the applicant- Zuber Khan be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court, unless his appearance is exempted by the learned trial court.

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(Subhash Vidyarthi, J.)

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Order Date :- 22.5.2024 Ram.

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Digitally signed by :- RAM SINGH High Court of Judicature at Allahabad, Lucknow Bench

Zuber Khan v. State of U.P. Thru. Prin. Secy. Home, Lko.

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Zuber Khan v. State of U.P. Thru. Prin. Secy. Home, Lko.

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