Allowed

Daud v. State of U.P. Thru. Prin.Secy. Home

Allahabad HC18 Jul 2024/6213/2024

Case brief

AI extract

What is this about?

The court granted bail to the applicant under Sections 302/34 IPC, noting the absence of eyewitness or last-seen evidence, lack of prior criminal record, reliance on a co-accused's bail, and citing Supreme Court precedent regarding seized articles.

What did the court decide?

Release of applicant on bail upon furnishing a personal bond and two sureties in like amounts, subject to specified conditions.

Daud Vs State of U.P. Thru. Prin.Secy. Home — Murder and Culpable Homicide | Allahabad HC (2024)

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Neutral Citation No. - 2024:AHC-LKO:48558

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Court No. - 4

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6213 of 2024

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Applicant :- Daud Opposite Party :- State Of U.P. Thru. Prin.Secy. Home Counsel for Applicant :- Bal Krishna Shukla Counsel for Opposite Party :- G.A.

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Shri Bal Krishna Shukla, learned counsel for the applicant as well as learned A.G.A. for the State and perused the record.

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Counter affidavit filed today by learned A.G.A. is taken on record.

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As per the learned counsel for the applicant, the present applicant is in jail in this case since 17.10.2022 in F.I.R./Case Crime No.341 of 2022, under Section 302/34 I.P.C., Police Station Dargah Sharif, District Bahraich.

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Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged. Attention of this Court has been drawn towards the order dated 01.07.2024 passed by this Court in Criminal Misc. Bail Application No.5434 of 2024; Nadeem Ahmad Vs. State of U.P., whereby co-accused Nadeem Ahmad has been granted bail. In the aforesaid bail application, a reference of another co-accused Noosrat Jahan @ Kulsoom has been indicated. For being convenience, the order dated 01.07.2024 passed by this Court in Criminal Misc. Bail Application No.5434 of 2024 is reproduced herein-below:

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"1. Heard Salil Kumar Srivastava, learned counsel for the applicant and learned A.G.A. for the State.

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2. This Court has passed an order on 30.5.2024 which reads as under:-

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"1. Heard Sri Salil Kumar Srivastava, learned counsel for the applicant and Sri Anirudh Singh, learned A.G.A. for the State.

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2. Sri Anirudh Singh, learned A.G.A. has submitted that counter

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affidavit has been prepared and the same is likely to be filed within 48 hours.

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3. Let a copy of the counter affidavit be served upon learned counsel for the applicant on or before 01.06.2024 and the same may be filed in Registry.

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4. Learned counsel for the applicant has requested that the matter may be listed on 01.07.2024.

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5. List this case on 01.07.2024 within top ten cases. The matter shall be taken immediately after fresh cases.

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6. Learned counsel for the applicant may file rejoinder affidavit, if it is so required."

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3. No counter affidavit has been filed by the learned AGA. Even no advance copy of the counter affidavit has been served upon the learned counsel for the applicant on or before 01.06.2024 in terms of the aforesaid order, therefore, the learned counsel for the applicant is unable to file rejoinder affidavit.

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4. As per the learned counsel for the applicant, the present applicant is in jail since 17.10.2022 in FIR/Case Crime No. 341 of 2022, under Sections 302, 34 IPC, Police StationDargah Shareef, District- Bahraich.

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5. Learned counsel for the applicant has submitted that the present applicant has been falsely implicated in the case as he has not committed any offence as alleged.

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6. Learned counsel for the applicant has informed that this Court has granted bail to the co-accused Noosrat Jahan @ Kulsoom vide order dated 13.5.2024 passed in Criminal Misc. Bail Application No. 4383 of 2024. He has further submitted that he is not claiming parity with the said co-accused Noosrat Jahan @ Kulsoom but the fact remains that the consideration of this Court granting bail to the aforesaid co-accused would be applicable in the present case. By means of para no. 5 of the bail order of the aforesaid co-accused, this Court considered the relevant facts to grant bail to the co-accused Noosrat Jahan @ Kulsoom, which reads as under:-

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"5. Without entering into merits of the issue; considering the arguments of learned counsel for the parties; contents and allegations of the FIR; the fact that there is no eye witness account of the incident nor there is any last seen evidence; the applicant is having no prior criminal history of any kind whatsoever; she is in jail for more than one year and six

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_months; being lady, the applicant may be given the benefit of Section 437 Cr.P.C. and undertaking of the applicant that she shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail." _

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7. He has further submitted that since there is no eye witness and no last seen evidence, therefore, the benefit thereof should be given to the present applicant also. Besides, like the coaccused Noosrat Jahan @ Kulsoom, the present applicant is also having no prior criminal history of any kind whatsoever. Although the prosecution is saying that the recovery of knife and 'baka' both have been allegedly recovered on the pointing out of the present applicant, but they may not be treated as an admissible and substantive evidence at the stage of considering the bail application of the present applicant in view of the judgement/order of the Apex Court in re: Sunil Kundu and another vs. State of Jharkhand, (2013) SCC 422. The relevant paragraph no. 29 thereof reads as under:-

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"...He has admitted that the seized articles were not sent to the Forensic Science Laboratory. No explanation is offered by him about the missing sanha entries. His evidence on that aspect is evasive. Clothes of the deceased were not sent to the Forensic Science Laboratory. The investigating officer admitted that no seizure list of the clothes of the deceased was made. Blood group of the deceased was not ascertained. No link is established between the blood found on the seized articles and the blood of the deceased. It is difficult to make allowance for such gross lapses. Besides, the evidence of eye-witnesses does not inspire confidence. Undoubtedly, a grave suspicion is created about the involvement of the accused in the offence of murder. It is well settled that suspicion, however strong, cannot take the place of proof. ..."

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8. Learned A.G.A. has, however, opposed the prayer for bail of the present applicant by submitting that the role of the present applicant is different from that of the co-accused Noosrat Jahan @ Kulsoom who has been granted bail by this Court inasmuch as the weapon used to commit the crime in question i.e., knife and 'baka' has been recovered on the pointing out of the present applicant but on being confronted in the light of the observations of the Apex Court in re: Sunil Kundu (supra), learned AGA could not explain properly, however, he has requested that he may be given some short time to file counter affidavit.

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9. Learned counsel for the applicant has opposed the aforesaid request of the learned AGA by submitting that earlier the

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learned AGA was given time to file objections on 21.05.2024 and again on 30.5.2024 but no counter affidavit has been filed in terms of the aforesaid orders, therefore, no further time may be given to the learned AGA to file counter affidavit. He has further submitted that since the present applicant is in jail since 17.10.2022 and the co-accused Noosrat Jahan @ Kulsoom has been granted bail by this Court, therefore, on the basis of the fact that there is no eye-witness account nor there is any last seen evidence and also the present applicant is having no prior criminal history of any kind whatsoever, he may be enlarged on bail. Learned counsel has stated that the applicant undertakes that if he is released on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail and shall participate in the trial proceedings.

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10. Without entering into the merits of the case and considering the arguments of learned counsel for the parties; the contents and allegations of F.I.R.; the fact that there is no eye-witness account nor there is any last seen evidence; the co-accused Noosrat Jahan @ Kulsoom has already been granted bail by this Court; the applicant has no prior criminal history of any kind whatsoever; having regard the dictum of the Apex Court rendered in the case in re: Sunil Kundu (supra) and undertaking of the applicant that he shall abide by all conditions of the bail order and cooperate in the trial court proceedings, I find it appropriate to release the present applicant on bail.

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11. Accordingly, the bail application is allowed.

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12. Let applicant- Nadeem Ahmad be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under

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Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.

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(v) The applicant shall not leave India without previous permission of the court."

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Learned counsel for the applicant has submitted that present applicant is not involved in any other criminal case prior to the instant case and the role of the applicant is identical with the role of co-accused Nadeem Ahmad (supra), therefore, he may be granted bail on the principle of parity.

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Learned counsel for the applicant has stated that the applicant undertakes that if the applicant is released on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail and shall participate in the trial proceedings.

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Learned A.G.A. has, however, opposed the prayer for bail of the applicant and vehemently submitted that the deceased had sustained eight injuries, but on being asked on the point as to whether there is any eyewitness account or any last seen evidence, learned A.G.A. submits that there is no such evidence and this fact has already been considered while granting bail to the co-accused person.

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Without entering into the merits of the case and considering the arguments of learned counsel for the parties; the contents and allegations of F.I.R.; the fact that there is no eye-witness account nor there is any last seen evidence; co-accused Nadeem Ahmad and Noosrat Jahan @ Kulsoom have already been granted bail by this Court; the applicant has no prior criminal history of any kind whatsoever; having regard the dictum of the Apex Court rendered in the case in re: Sunil Kundu (supra) and undertaking of the applicant that he shall abide by all conditions of the bail order and cooperate in the trial court proceedings, I find it appropriate to release the present applicant on bail.

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9. Accordingly, the bail application is allowed .

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Let applicant- Daud be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

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(v) The applicant shall not leave India without previous permission of the court.

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(Rajesh Singh Chauhan,J.)

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Order Date :- 18.7.2024 Anupam S/-

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

Daud v. State of U.P. Thru. Prin.Secy. Home

Case brief

What is this about?

What did the court decide?

Daud v. State of U.P. Thru. Prin.Secy. Home

Case brief

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