Ozim Vs State of U.P.

Court No. - 80

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20781 of 2025

Applicant :- Ozim Opposite Party :- State of U.P. Counsel for Applicant :- Deep Prakash Goswami,Prateek Srivastava Counsel for Opposite Party :- G.A.

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Connected with

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 15698 of 2024

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Applicant :- Faisal Khan Opposite Party :- State of U.P. Counsel for Applicant :- Mukesh Chandra Gupta,Prateek Srivastava,Shubham Prakash Gupta,Subham Singh,Yogendra Pal Singh

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Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Prateek Srivastava, the learned counsel for applicants and the learned A.G.A. for state.

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Perused the record.

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This repeat application for bail has been filed by applicants- Ozim and Faisal Khan, seeking their enlargement on bail in Case Crime No. 307 of 2022, under sections 364, 302, 201/34 IPC, P.S. Atrauli, District- Aligarh, during t he pendency of trial i.e. Sessions Trial No. 1920 of 2023 (State Vs. Ozim Khan) under sections 364, 302, 201/34 IPC, P.S. Atrauli, District- Aligarh, now pending in the Court of Sessions Judge, Aligarh.

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The first bail application of the applicants was rejected by this Court by a detailed order dated 12.12.2023 passed in Criminal Misc Bail Application No. 35381 of 2023 (Faisal Khan Vs. State of U.P) connected with Criminal Misc. Bail Application No. 39008 of 2023 (Ozim VS. State of U.P.). For ready reference the order dated 12.12.2023 is reproduced herein under:

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"Heard Mr. Arun Kumar Sharma and Mr. Zafar Ali, the learned counsel for

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applicants and the learned A.G.A. for State.

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These applications for bail have been filed by applicants Faisal Khan and Ozim seeking their enlargement on bail in Case Crime No.307 of 2022, under Sections 364, 302, 201, 34 IPC, police station Atrauli, district Aligarh, during the pendency of trial.

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Perused the record.

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Record shows that one Sonu went missing. Accordingly, a missing person report was lodged by the father of missing boy on 02.07.2022. Subsequently, the father of the missing boy (Sonu), namely, Kunwarpal Singh Verma (first informant) lodged a first information report dated 05.07.2022 which was registered as Case Crime No.0307 of 2022, under Section 364 IPC, police station Atrauli, district Aligarh. In the aforesaid FIR, one unknown person has been arraigned as solitary accused.

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As per the prosecution story as unfolded in the said FIR, it is alleged that Sonu, son of first informant, went out from home on a motorcycle on 02.07.2022 at 07.00 P.M. but did not return since then. The FIR further records that mobile number of the missing boy i.e. 9997792640 was reported to be switched off.

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After above-mentioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. The statement of first informant Kunwarpal Singh Verma was recorded under Section 161 CrPC but nothing concrete emerged in his statement. Thereafter, Investigating Officer investigated the vicinity of the house of first informant. He accordingly, recovered CCTV footage of the camera installed at a public place. Upon perusal of the same, two persons riding on a motorcycle were seen. On this information, Investigating Officer proceeded further in the matter. Accordingly, the Investigating Officer showed the picture to the first informant who identified them as that of applicants. As such, prima facie the complicity of applicants emerged in the crime in question. The complicity of present applicants Faisal Khan and Ozim whose pictures had emerged in the CCTV footage were arrested on 08.02.2023. On the pointing out of applicants, the motorcycle of the deceased was recovered from a pond on the pointing of present applicants. However, except for the above, no other recovery was made from them. The confessional statements of the accused were recorded who, in their aforesaid statements, have clearly and categorically admitted commission of crime. The motive behind the occurrence which has emerged is that since the names of the present applicants were disclosed by the deceased to the police in some other case and because of which they went to jail therefore the deceased was put to death.

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It is apposite to mention here that the dead body of the deceased was not recovered. Therefore, neither the inquest nor the post-mortem of the body of deceased could be conducted. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of present applicants is established in the crime in question. He, accordingly, submitted the charge-sheet dated 28.04.2023 whereby present applicants have been charge-sheeted under Sections 364, 302, 201, 34 IPC.

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Learned counsel for the applicants contend that applicants are not named in the first information report. Though applicants are charge-sheeted accused yet they are liable to be enlarged on bail. The present case is a case of circumstantial evidence, therefore there is no eye-witness of the occurrence. Referring to the judgement of Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, learned counsel for the applicants contend that complicity of an accused in a case based on circumstantial

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evidence is to be judged in the light of parameters laid down by the Apex Court in aforementioned judgement. However, up to this stage, none of the parameters laid down in aforementioned judgement is satisfied against the present applicants.

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The complicity of applicants in the crime in question is said to be alleged on the following incriminating circumstances which have emerged during the course of investigation : (a) the theory of last seen which has emerged against applicants in the statement of the first informant after expiry of a period of two months from the date of occurrence i.e. 02.09.2022. Referring to the judgement of the Apex Court in Jaswant Gir Vs. State of Punjab (2005) 12 SCC 438 and Jabir Vs. State of Uttarakhand 2023 SCC OnLine SC 32, he submits that no conviction of an accused is possible simply on the basis of last seen; (b) they further submit that the CCTV footage recovered by the Investigating Officer on the basis of which the complicity of applicants is alleged in the crime in question is unworthy of reliance in absence of the requisite certificate under Section 65-B of Indian Evidence Act; (c) recovery of motorcycle from the pond on the pointing out of applicants is unworthy of reliance, inasmuch as, there is no independent witness of recovery; With regard to the motive behind the crime in question, the learned counsel for applicants contends that motive plays an important link in the chain of circumstances in a case based on circumstantial evidence. In support of above, reliance is placed upon the judgement of the Supreme Court in Nandu Singh Vs. State of M.P. 2022-SCC On-Line SC 1454. The learned counsel for applicants contend that the motive that has emerged against present applicants cannot be said to be so incriminating so as to assume that applicants shall commit death of the deceased. Since there was no pre-existing enmity between the parties therefore no animus can be gathered against the applicants to commit the crime in question.

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According to the learned counsel for applicants when the aforesaid incriminating circumstances are considered singularly or cumulatively, they by themselves do not point at the guilt of the applicants. He further contends that though the applicants have criminal history of six cases each but the same has been sufficiently explained. The applicants are in jail since 08.02.2023. As such, they have undergone more than ten months of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, upto this stage no such circumstance has emerged necessitating the custodial arrest of the applicants during the pendency of trial. To buttress their submission, they have relied upon the judgement of Supreme Court in Sumit Subhashchandra Gangwal and another Vs. State of Maharashtra and another 2023 Live Law (SC) 373 (paragraph 5). On the cumulative strength of above, it is thus urged that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that it is an undisputed fact that applicants and the deceased were acquainted with each other. So far as the CCTV footage is concerned, the requisite certificate in terms of Section 65-B of Indian Evidence Act has already been submitted and, therefore, at this stage, it cannot be said that CCTV footage relied upon by the prosecution to infer the guilt of the applicants in the crime in question is unworthy of reliance. The recovery of motorcycle belonging to the deceased from the pond on the pointing of accused is by itself such an incriminating circumstance which clearly point out the guilt of applicants in the crime in question. Attention of the Court was then invited to the confessional statements of the accused wherein they have admitted their guilt. According to the learned A.G.A. though confession by itself is a very weak piece of evidence but it can be relied in case it gets corroborated with other material. The clinching circumstances as noted above clearly corroborate the confessions of the accused, inasmuch as, in the absence of dead body of the deceased the said circumstance become relevant and worthy

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of reliance. On the above premise, the learned A.G.A. contends that no sympathy be shown by this Court in favour of applicants. As such, the present applications for bail are liable to be rejected.

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When confronted with above, the learned counsel for applicants could not overcome the same.

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Having heard the learned counsel for applicants, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, coupled with the fact that the objections raised by the learned A.G.A. in opposition to the present applications for bail could not be dislodged by the learned counsel for applicants therefore, irrespective of the varied submissions urged by the learned counsel for applicants in support of the present applications for bail, this Court does not find any good or sufficient ground to enlarge the applicants on bail.

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These applications for bail thus fail and are liable to be rejected.

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They are accordingly rejected. "

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On the last occasion,when the matter was taken up, the learned counsel for applicants contended that inspite of the fact that the charge sheet/police report was submitted against applicants on 28.4.2023 and thereafter the charges were framed against applicants by Court below vide framing of charge order dated 30.9.2023 not a single prosecution witness has deposed before Court below up to this stage. On the above premise, it was thus contended by the learned counsel for applicants that there is delay in the trial of applicants. However, the delay in progress of trial is not attributable to the applicants as they are under incarceration. As such, placing reliance upon the judgement of Supreme court in A. R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225, it was urged by the learned counsel for applicants that since the accused has fundamental right of speedy trial and the said right of applicant stands infringed on account of the lackadaisical approach of the prosecution in pursuing the trial, as such applicants are liable to be enlarged on bail.

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In view of above, the learned A.G.A. was directed to obtain instructions, in the matter.

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On the matter being taken up today, the learned A.G.A. contends that trial of applicants has commenced inasmsuch as Kunwar Pal Sharma has deposed before Court below as P.W.1. On the aforesaid premise, the learned A.G.A. submits that grounds urged by the learned counsel for applicants for bail during the pendency of trail has now stands vanished. It is thus contended by the learned A.G.A. that considering the nature and gravity of offence the sentence provided for the offence complained of the period of

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incarceration undergone by accused applicants is by itself not so sufficient a ground so as to enlarge the applicants on bail during the pendency of trial. It is thus urged by the learned A.G.A. that no new, good or sufficient ground has emerged so as to enlarge the applicants on bail.

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In rejoinder the learned counsel for applicants tried to impress upon the court with the aid of the additional submission that since there are various contradictions in the statement of P.W.1. therefore, no cast iron case is made out to prolong the custodial arrest of applicant/appelalnt. As such, the present repeat application for bail is liable to be allowed by this Court.

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Having heard the the learned counsel for applicants, the learned A.G.A. for State and upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicants, accusation made that this Court finds that trial of applicants has commenced. P.W.1 has deposed before Court below. However, he has not been declared hostile. Even though this Court is a superior Court yet dictates of prudence require that this Court should not evaluate and appreciate the evidence which has emerged during the course of trial as any observation made by this Court shall pre-empt the trial and may affect the prosecution or the defence. Furthermore, considering the nature and gravity of offence and also the period of sentence provided for the offence complained of the period of incarceration, undergone by applicants by itself cannot be a groud so sufficient so as to enlarged the applicant on bail cannot by itself a ground so sufficinet to enlarge the applicants on bail.

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In view of above, and considering the material on record, the recital contained in the bail rejection order, this Court finds that that no new, good or sufficient ground has emerged so as to enlarge the applicants on bail. As such, these repeat applications for bail fails and are liable to be rejected.

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They are accordingly rejected.

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Order Date :- 29.7.2025 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Ozim v. State of U.P.

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Ozim v. State of U.P.

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