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Allahabad High Court · body

2007 DIGILAW 2685 (ALL)

Ghanshyam Das Gupta v. State of U. P.

2007-11-01

VINOD PRASAD

body2007
VINOD PRASAD, J. ( 1 ) THE applicant seeks bail in Crime No. 1583-A. K. of 2005 for offences under Sections 147, 148, 149, 323, 504,506,436,302,201,1. P. C. and Section 6 of Unlawful Activities (Prevention) Amendment Act, 2004 P. S. Kotwali District Mau. ( 2 ) IN short the allegations of the prosecution are that there was a rioting in District mau on 14. 10. 2005 because of playing of loudspeaker and in the said rioting the factory of Khurshid situated at mohalla mughalpura on T. C. L. road was set ablaze by a rioting mob of 50-60 people from other community. Abu Talib son of informant Hazi salauddin, who had joined the said factory as worker just four days prior, had gone to work in that factory along with one shamshad and when the factory was torched he came out with the said shamshad to save their lives. Shamshad was neither assaulted nor any gesture was made to assault him but the applicant and one Nand Lal Sahani assaulted Abu Talib with iron rod at the instigation of one Bharat lal Rahi. Abu Talib sustained injuries and fell down. Shamshad came to the informant and narrated him the incident. Curfew was imposed due to riot. The informant came to know that on 26. 10. 2005, a dead body had been fished out of Tons river in Bahadur ganj, District Ghazipur and when the informant went to police station Kasimabad then the police showed the clothes and the photo of the recovered body which was recognized by the informant to be that of his son Abu Talib. Informant then went to the police station Kasimabad in District ghazipur and lodged the F. I. R. on 7. 11. 2005, which was subsequently transferred to P. S. Kotwali, District Mau for investigation. ( 3 ) THE inquest report and the autopsy report of the deceased both dated 16. 10. 2005 indicate that the deceased had sustained three injuries on the right side of forehead, front of head and just below right eye. The cause of his death is mentioned as coma as a result of sustained injuries. ( 4 ) ON the above facts I have heard Sri j. S. Sengar learned counsel for the applicant and Sri Manish Tiwari and Sri shariqullah learned counsels for the informant and the learned A. G. A. in support and opposition of this bail application. The cause of his death is mentioned as coma as a result of sustained injuries. ( 4 ) ON the above facts I have heard Sri j. S. Sengar learned counsel for the applicant and Sri Manish Tiwari and Sri shariqullah learned counsels for the informant and the learned A. G. A. in support and opposition of this bail application. ( 5 ) SRI Sengar vehemently harangued that in this case the applicant has been falsely implicated and the F. I. R. is very belated and is a cooked up version which was lodged after a gap of more than 20 days from the recovery of the dead body of an unknown person from the river Tons on 16. 10. 2006. He further contended that nobody else but for the deceased sustained injury in the rioting and there was no move for the applicant to assault the deceased leaving all other persons of the locality and the factory including the owner Khurshid Alam and his wife Shaira Khatun and all other labours unhurt and without assault. He further contended that the wife of the owner Shaira khatun was saved by a Hindu Bablu Misra who kept her in his house for two days. He further contended that there are two contradictory versions given by the prosecution witnesses regarding injuries sustained by the deceased. One version is given by the owner and his wife who have stated that the deceased jumped from the roof as a result of which he sustained the injuries which version is supported by many others and the second version is by Shamshad and mazahar who have stated that the deceased was assaulted by the applicant and Nand lal Sahani, to support his contention of contradictory versions of prosecution evidence, learned counsel has invited my attention on the statements of Khurshid Alam and his wife Shaira Khatun appended along with this bail application. Learned Counsel further contended that in the F. I. R. it is wrongly mentioned that other people were also assaulted and murdered by the rioting mob as there is no evidence to that effect nor the prosecution could get any other person examined medically in the incident. Learned Counsel further contended that in the F. I. R. it is wrongly mentioned that other people were also assaulted and murdered by the rioting mob as there is no evidence to that effect nor the prosecution could get any other person examined medically in the incident. He further contended that even in the charge-sheet no other person who had sustained injuries has been made a witness as there was no other person who has injured in the said incident and therefore the prosecution allegation of assault by the mob on the persons of the other community is totally false. He further contended that the applicant was member of peace committee to restore harmony in the area vide Annexure S. A. 3 but he has been falsely implicated at the instance of the local M. L. A. Mukhtar Ansari who was instrumental in fomenting the riot. He also submitted that it was because of this reason and patronage of the said M. L. A. that the F. I. R. was lodged in District Ghazipur instead of District Mau where the incident had occurred. He further contended that on the own showing of the informant he came out of his house to file various applications of 28. 10. 2005 and 2. 11. 2005 but he did not lodge any F. I. R. on those dates but lodged it after a great delay on 7. 11. 2005 for which there is no reasonable explanation. He further contended that the applicant does not have any criminal history nor he is wanted in any other case and he never absconded nor tampered with the evidence. He further submitted that the corpse which is alleged to be that of the deceased is in fact not of the deceased. He further contended that the first informant is not an eyewitness of the incident and presence of Shamshad and mazahar on the spot is doubtful as they did not sustain any injury even though it is alleged that Shamshad came out in the company of the deceased from the factory and was faced with the rioting mob and the applicant and other mob frenzy people first. It is also submitted that no weapon of assault has been recovered from the possession of the applicant and he has been falsely implicated because he is the Secretary of Ram lila Committee and in that capacity he had moved various applications to remove the illegal encroachments over Ram Lila platform done by people of other community vide Annexure S. A. 4. He further contended that the applicant will not abscond nor tamper with prosecution witnesses and therefore he should be released on bail as he is already in jail since July 2007. ( 6 ) LEARNED A. G. A. as well as the two counsels for the respondent argued that it was the applicant who had assaulted the deceased in rioting and the post-mortem report is consistent with the ocular version therefore bail should not be granted. They further contended that police did not arrest the applicant for a long time. They also contended that there is no delay in lodging the f. I. R. on the facts of the present case. They further submitted that the recovered body from river Tons was that of the deceased. They further contended that the factory was put to fire and therefore also the bail should be denied. They submitted that Shamshad is an eyewitness and therefore also bail should not be granted. ( 7 ) I have considered the contentions raised by either sides. Some of the surreal facts of the case according to the prosecution version and which has not been denied by them are: (i) Shamshad came out of the factory along with the deceased after it was set ablaze and it was he who had faced the angry and outrageous mob first but he was let off without even making any gesture of assault (ii) no body else but for the deceased sustained injury in the incident and no body sustained even burn injury (iii) deceased had joined the factory only four days prior and there was no motive for the accused applicant to assault him (iv) F. I. R. is very belatedly lodged after a gap of 21 days and meanwhile the informant came out of his house on two dates i. e. 28. 10. 2005 and 2. 11. 10. 2005 and 2. 11. 2005 but he did not lodge any F. I. R. at the police station nor there is any averment to that effect and so the defence of curfew being clapped for delayed lodging of F. I. R. is not commendable (v) Body was discovered on 16. 10. 2005 and not on 26; 10. 2005 as is alleged in the F. I. R. (vi) the prosecution version that whoever came out of the factory was murdered is a false statement of fact and none else but for the deceased sustained injury in the incident (vii) applicant is the Secretary of Ram Lila Committee and he had filed application for removal of encroachment of platform of Ram Lila Committee (viii) there are two irreconcilable different version regarding the injuries sustained by the deceased. According to the factory owner and his wife, who claimed themselves to be eyewitnesses, the deceased along with Shamshad jumped from the roof and sustained injuries by jumping and the other version is by Shamshad and Mazahar who have supported the F. I. R. but even there Mazahar alleged that all the persons constituting the mob assaulted the deceased but according to Shamshad only applicant along with Nand Lal assaulted the deceased (ix) Version of the owner and his wife shows a mob of 100-200 people and they did not amount the role of causing injury to the deceased by the applicant nor they name the applicant as an accused in the mob (x) No evidence of tampering of witnesses has been brought on record by the prosecution (xi)Another worker of the factory-Saheb, who was working at that time, did not name any body as accused and supported the version of factory owner (xii) applicant did not abscond (xiii) informant is not an eyewitness of the incident and his evidence is hearsay (xiv) Shaira Khatun, wife of owner of the factory was saved by Bablu Misra who had concealed her in his house for two days saved her life and she did not even name the applicant as an accused. ( 8 ) FROM the above facts I am of the opinion that the applicant deserves to be released on bail on the conditions mentioned below. ( 9 ) LET the applicant Ghanshyam Das gupta be released on bail on his furnishing a personal bond of Rs. ( 8 ) FROM the above facts I am of the opinion that the applicant deserves to be released on bail on the conditions mentioned below. ( 9 ) LET the applicant Ghanshyam Das gupta be released on bail on his furnishing a personal bond of Rs. 1,00,000 and two solvent sureties each in the like amount to the satisfaction of C. J. M. , Mau on the following conditions: 1. That the applicant will not abscond nor tamper with prosecution witnesses; 2. That the applicant will report to the police station concerned once in every month at a time and date to be fixed by officer-in-charge of the police station concerned; 3. That the applicant will surrender his passport with the C. J. M. , Mau till the pendency of the case; 4. That the applicant will not leave District without prior intimation to the police station concerned; 5. That one of two sureties will be his near kith and kin. Application allowed. . .