Mosim Vs State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

Neutral Citation No. - 2024:AHC-LKO:35860

Court No. - 13

Case :- CRIMINAL APPEAL No. - 816 of 2024

Appellant :- Mosim Respondent :- State Of U.P. Thru. Prin. Secy. Home Deptt. Lucknow And Another Counsel for Appellant :- Anshuman Singh,Ankit Singh,Himanshu Pathak,Karan Srivastava Counsel for Respondent :- G.A.

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Hon'ble Saurabh Lavania,J.

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Heard learned counsel for the appellant and learned A.G.A. for the State.

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The present appeal has been filed under Section 14-A (2) of Scheduled Castes and Scheduled Tribes Act, 1989 against the impugned order dated 09.11.2023 passed by Special Judge, SC/ST Act, Sultanpur in Bail Application No.3327 of 2023 arising out of Case Crime No.292 of 2022, under Section 302 I.P.C. and Section 3(2)(v) of SC/ST Act, registered at Police Station- Gauriganj, District-Amethi, whereby rejecting the bail application of the appellant.

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While pressing the instant appeal challenging the order dated 09.11.2023 passed by the trial court, whereby the application preferred by the appellant under Section 439 Cr.P.C. was rejected by the trial court for enlarging the appellant on bail, it is stated that the appellant has been falsely implicated in the instant case by the informant (son of the deceased, namely, Babu Lal Kori) and is in jail since 27.08.2022 for committing no crime as would appear from the facts of case. The facts indicated are as under:-

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(i) The body of the deceased was found, as per the facts narrated in the FIR, from hua miner situated in the vicinity i.e. Village- Gauspur, Majre Aindhi, Gauriganj, District- Amethi and at that relevant point of time, the informant was not present at the site of the crime.

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(ii) Case of the prosecution is that the appellant himself informed the villagers in loud voice about committing the crime, which is improbable as an culprit/accused would not inform the villagers/residents of the vicinity that he has murdered a person of the village.

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(iii) As per the criminal jurisprudence, on admission the judgement on conviction cannot be passed.

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(iv) The body was found on 25.08.2022 on the information provided by the appellant himself as per the case of the prosecution and thereafter FIR was lodged indicating the same and on the next date i.e. 26.08.2022 at 1:45 pm the inquest was carried out and at that point of time Ram Sewak and Ram Samujh were present, accordingly, they were made witness of the inquest. However, at that point of time, these witnesses of inquest have not stated that the appellant is the culprit and thereafter with due consultation, these persons were made by the I.O. as eye-witness and after huge delay i.e. 15th September, 2022, the statement of these witnesses were recorded by the I.O. and a perusal of the statement of these witnesses would indicate that they were tutored.

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(v) In the Majid Bayan , the aforesaid witnesses stated that they have seen the incident, if it is so, then being the family members, they ought to have tried to save the life of the deceased, but they did not try to save the life of the deceased as appears from their statements itself.

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(vi) In the aforesaid background of the case, the presence of the alleged eye-witnesses at the place of crime is doubtful and in fact the above named witnesses are not the eye-witness.

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He further submitted that the appellant, who is in jail since 27.08.2022, having no criminal history, which has not been opposed by the A.G.A., and the possibility of conclusion of trial in near future is extremely bleak, therefore, the present appeal is liable to be allowed and the appellant be released on bail.

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Learned A.G.A. for the State opposed the prayer for bail, however, he could not dispute the aforesaid contention of the counsel for the appellant.

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Upon due consideration of the submissions advanced by the counsel for the appellant, learned A.G.A. for the State and going through the contents of the appeal, impugned order and other relevant documents and the facts indicated, this Court finds that the present appeal is liable to be allowed. Accordingly, it is allowed .

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Order dated 09.11.2023 passed by Special Judge, SC/ST Act, Sultanpur in Bail Application No.3327 of 2023 arising out of Case Crime No.292 of 2022, under Section 302 I.P.C. and Section 3(2)(v) of SC/ST Act, registered at Police StationGauriganj, District- Amethi, is hereby set aside.

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Let appellant- Mosim be released on bail in the aforesaid case crime number on his furnishing personal bond of

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Rs.25,000/- (Rupees Twenty Five Thousand Only) and two reliable sureties each of the like amount to the satisfaction of the court concerned subject to following additional conditions :-

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(i) The appellant shall cooperate with the prosecution during trial.

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(ii) The appellant shall not tamper with the evidence during trial.

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(iii) The appellant shall not pressurize/intimidate the prosecution witness(s).

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(iv) The appellant shall not commit an offence.

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(v) The appellant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer or tamper with the evidence.

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(vi) The appellant shall remain present before the trial court on each date fixed, either personally or through counsel.

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(vii) The appellant shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court.

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(viii) The appellant shall remain present, in person, before the trial court on the dates fixed for recording of statement under Section 313 Cr.P.C.

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In case of default of above conditions, 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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As this order relates to enlargement of the appellant on bail, it is clarified that observation(s) made in this order shall have no bearing on the merits of the case and the trial court shall not be influenced by any observation(s) made in this order.

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Order Date :- 9.5.2024 Ashutosh

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Digitally signed by :- ASHUTOSH PANDEY High Court of Judicature at Allahabad, Lucknow Bench

Mosim v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

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Mosim v. State of U.P. Thru. Prin. Secy. Home Deptt. Lucknow and Another

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