Naseem Vs State of U.P. Thru. Prin. Secy. Home U.P. Lko. and Another

Heard learned counsel for the applicant/appellant and learned A.G.A. for the State as well as Shri G.S. Pandey, learned counsel for respondent no.2/ complainant and perused the record.

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This appeal has been preferred under Section 14 (A) (2) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 against impugned order dated 27.02.2023, passed by Special Judge, (SC/ST Act), Lakhimpur Kheri, in bail application no. 51/2023, arising out of Case Crime No. 562 of 2020, under Sections 302/34 IPC and Sections 3(2) 5 of SC/ST Act, Police Station- Mohammadi, District Kheri, whereby the bail application of the appellant/applicant has been rejected.

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Learned counsel for appellant while drawing the attention of this Court towards the impugned order submits that the trial court has committed mistake in rejecting the plea of bail of the appellant and unfortunately the first bail appeal of the appellant was also rejected by a Coordinate Bench of this Court on 12.5.2022 and the appellant is in jail in this case for the last 04 years and 02 months.

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It is further submitted that it is a case of no evidence as the case of the prosecution was based on circumstantial evidence as no body has claimed to have seen the appellant or any other accused persons committing the offence.

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Elaborating further it is submitted that the FIR has been lodged by the maternal uncle of the deceased on 25.7.2020 at 23.20 hours alleging therein that on the same day at about 5.30 P.M. the deceased received a phone call from the phone number of the appellant on the pretext that the dispute pertaining to the payment of money is to be settled and it is on this phone call the deceased had left his house, however on the next day his dead body has been found and it is suspected that the appellant is association with some other persons have committed the murder of the deceased.

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It is vehemently submitted that the FIR on the face of it has been registered ante timed and in this regard attention of this Court has been drawn towards the inquest report, which shows that the inquest has started on 25.07.2020 at 23.30 hours and despite the informant Ram Prakash is shown to be present in inquest proceedings he has not suspected appellant or any other person causing death of the deceased and the F.I.R. of the case was not in existence till then, as no particulars of the F.I.R. has been mentioned in the inquest report, thus the allegations which have been levelled in the FIR could not be believed.

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It is further submitted that after 04 days of the incident the appellant is shown to have been arrested along with one Tamjid and he further shown to have confessed his guilt and a country made pistol along with some cartridges is shown to have recovered on his pointing out. Apart from this after about one month of the incident the statement of one Sonpal is shown to have been recorded wherein he claimed to have seen the appellant with the deceased in the evening of 25.7.2020, sitting at some shops.

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It is vehemently submitted that Sonpal is the resident of the same village and it is highly improbable that he will keep mum about this significant information for about 30 days and therefore he appears to be a planted witness.

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It is next submitted that the Investigating Officer of this case has not collected any call details record nor the location of the phones of the appellant or deceased and only on the basis of disintegrated weak circumstances the charge sheet has been filed.

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it is further submitted that though 09 prosecution witnesses have been testified before the trial court but even if the

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evidence given by the witnesses is believed as it is, the same may not reach the benchmark of proof beyond reasonable doubt and the criminal history of three cases of the appellant has been explained in paragraph 32 of the bail application as well as paragraph 3 of the rejoinder affidavit and the Gangsters Act against the applicant has been slapped on the basis of his involvement in the instant case and there is no apprehension that the accused-appellant after release on bail, may flee from the process of law or may otherwise misuse the liberty.

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Learned A.G.A. on the other hand opposes the prayer of bail of the applicant, while learned counsel for the respondent no.2/ complainant submits that a young boy has been done to death by the appellant and if any laxity has been committed by the Investigating Officer, the benefit of the same may not be given to the appellant, more so when the trial is going to conclude within a month or so, thus, the appellant is not entitled to be released on bail.

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Having heard learned counsel for the parties and having perused the record, it is reflected that even if the case of the prosecution is believed as it is, the circumstances which have been placed against the appellant are (i) a phone call was received by the deceased allegedly made by the appellant on his phone on 25.7.2020 at 5.30 P.M. and it is on this phone call deceased had gone to meet appellant, (ii) the appellant was arrested after 04 days of the incident and he confessed the guilt while in the custody of the police and a country made pistol along with cartridges is shown to have been recovered on his pointing (iii) after one month of the incident one Sonpal has emerged and stated to have been seen appellant in the company of the deceased, in the evening of 25.7.2020. The defence of the appellant appears to be that no call details or mobile phones location of the deceased or appellant has not been collected nor the call details record of the mobile phone of the deceased and appellant has been collected and it is itself in suspicion as to whether any phone call, at the relevant time was made by the appellant on the mobile phone of the deceased and the FIR is ante-timed and the informant who was present at the time of inquest which had started at 23.30 hours on 25.7.2020 has not alleged any suspicion against the appellant.

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The law with regard to the cases based on the circumstantial evidence is now no more res integra and the

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prosecution in such cases is obliged to prove all the incriminating circumstances available against the accused person, the circumstances must be of conclusive in nature, the proved circumstances must form a chain, this chain must be so strong not to leave any room for any other person to enter and commit the offence and every hypothesis in that offence has been done by the accused.

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Keeping in view the above settled principles pertaining to the cases based on circumstantial evidence and keeping in view the allegation and circumstances placed against the accused person/ appellant in this case, this Court is of the considered view that a case of bail is emerging in favour of the appellant.

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The submission of learned counsel for the appellant that the trial is in its concluding stage, in the considered opinion of this Court may not be having any significance. If an accused person is otherwise entitled for bail, then why he should remain in jail even for a day.

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Thus, having regard to the above facts and circumstances of the case, in the considered opinion of this court material illegality has been committed by the trial court in rejecting the prayer of bail of the appellant.

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In result, the appeal filed by the appellant is allowed and the order dated 27.02.2023, passed by Special Judge, (SC/ST Act), Lakhimpur Kheri is hereby set-aside .

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Let appellant- Naseem be enlarged 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 subject to following additional conditions, which are being imposed in the interest of justice:-

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(i) The appellant shall not take any adjournment if the prosecution witnesses are in attendance.

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(ii) The appellant shall not tamper with the evidence of witnesses and shall not commit any offence.

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(ii) The appellant 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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(iv) The appellant shall remain present before the trial court on

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each date fixed, either personally or through her 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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(v) In case, the appellant 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 appellant 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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(vi) The appellant 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 appellant 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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Observations made herein-above are only for the purpose of disposal of bail application and the same shall not have any bearing on the trial of the case.

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The trial court would proceed with the trial with utmost expedition and would conclude it at the earliest without granting adjournments to the prosecution or appellant or any other accused person, as the case may be.

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A copy of this order be immediately sent to the trial court through Sessions Judge concerned.

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Order Date :- 23.9.2024 Muk

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Digitally signed by :- MOHD UMAR KHAN High Court of Judicature at Allahabad, Lucknow Bench

Naseem v. State of U.P. Thru. Prin. Secy. Home U.P. Lko. and Another

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Naseem v. State of U.P. Thru. Prin. Secy. Home U.P. Lko. and Another

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