Research › Search › Judgment

Allahabad High Court · body

2009 DIGILAW 3013 (ALL)

Sazid v. State Of U. P.

2009-09-02

VIJAY KUMAR VERMA

body2009
JUDGMENT: Hon'ble Vijay Kumar Verma, J. Applicant's counsel has filed rejoinder affidavit, which is taken on record. 2. Heard further arguments of Sri B.R. Mishra, Advocate, appearing for the applicant, Sri M.N. Shukla, learned counsel for the complainant and AGA for the State. 3. The allegations made in the FIR lodged on 09.01.2007 by Shyam Lal at P.S. Shahpur, district Muzaffar Nagar, at case crime no. 07 of 2007, under section 302 IPC and 3(2)5 SC/ST Act, in brief, are that the accused Sazid had carried Kuldeep, son of the complainant, on 08.01.2007 at about 7:30 p.m. from his house and his murder was committed in the same night, whose dead body was found lying on 09.01.2007 in the morning in primary school. Information regarding committing the murder of deceased is said to have been given to the complainant by the witnesses Jamilu and Mahboob. The murder is said to have been committed by Rahamat and his brother-in-law (sala) Sajid (applicant herein). 4. According to the post-mortem report (annexure-2), the deceased had died as a result of firearm injuries. 5. The first and foremost submission made by learned counsel for the applicant is that no person had seen the applicant and other accused committing the murder of deceased Kuldeep and even the alleged eye-witnesses Mahboob and Jamilu had only heard the sound of fire and seen the dead body of deceased, but they had not seen the accused persons committing the murder of deceased. 6. It is further submitted by learned counsel that the witness Mahboob has been examined in trial court in S.T. No. 801 of 2007, but he has not supported the case of prosecution and turned hostile. Further submission in this context is that the witness Om Pal Singh also has been examined in the aforesaid sessions trial, but he also has not supported the case of prosecution and has turned hostile. For this submission, my attention has been drawn towards the statement of Mahboob, which has been filed as annexure 4 with the bail application and statement of Om Pal Singh, annexure 1 to the rejoinder affidavit dated 02.09.2009. 7. For this submission, my attention has been drawn towards the statement of Mahboob, which has been filed as annexure 4 with the bail application and statement of Om Pal Singh, annexure 1 to the rejoinder affidavit dated 02.09.2009. 7. It is also submitted by learned counsel for the applicant that FIR is said to have been lodged on 09.01.2007 at 8:45 a.m. but from the statement of Om Pal Singh, this fact is borne out that the FIR was lodged on 09.01.2007 at about 2:00 p.m. 8. Regarding criminal history of the applicant, which has shown in paragraph 6 of the counter affidavit, it is submitted by learned counsel for the applicant that the applicant is not accused in case crime no. 189 of 2008, under sections 147, 148, 149, 302 and 120-B IPC, P.S. Shahpur, District Muzaffar Nagar and this case has been wrongly shown in the criminal history. 9. Next submission made by learned counsel is that the applicant is languishing in jail since 09.10.2007 and hence on the basis of long incarceration in jail, he is entitled to be released on bail, as due to delay in trial, his fundamental right of speedy trial envisaged under article 21 of the constitution is being violated. 10. Further submission made by learned counsel for the applicant is that the co-accused Rahmat has been granted bail by another Bench of this Court vide order dated 27.03.2009 passed in Criminal Miscellaneous Bail Application No. 1293 of 2009 and hence on the basis of principle of parity, the applicant also is entitled to be released on bail. 11. On the matter of granting bail on the ground of the principle of parity, it is submitted by learned AGA that parity cannot be the sole ground for bail. Reliance has been placed on Shahnawaz @ Shanu Vs. State of U.P. 2009 (66) ACC 189. 12. 11. On the matter of granting bail on the ground of the principle of parity, it is submitted by learned AGA that parity cannot be the sole ground for bail. Reliance has been placed on Shahnawaz @ Shanu Vs. State of U.P. 2009 (66) ACC 189. 12. The bail application has been vehemently opposed on merit by learned counsel for the complainant and AGA contending that the applicant had carried the deceased from his house on 08.01.2007 at 7:30 p.m. and thereafter his murder was committed in the same night and dead body was found lying on 09.01.2007 in the morning in primary school and hence in this heinous crime of taking the life of an innocent person without any lawful excuse, the applicant should not be granted bail, because in view of section 106 of Indian Evidence Act, the applicant will be held liable for committing the murder of deceased, as he has not furnished any explanation as to what time he had left the deceased and departed himself from his company after carrying him from his house. 13. Further submission made by learned counsel for the complainant is that the eye-witness Jamilu has been murdered with the collusion of the applicant and co-accused Rahamat. For this submission my attention has been drawn towards the copy of FIR dated 09.06.2008 (annexure CA-1 to the counter affidavit ) lodged by Mohd Ali at P.S. Shahpur District Muzaffar Nagar about the murder of Jamilu. It is also submitted in this context by the learned counsel that murder of Jamilu was committed on 09.06.2008 and due to fear of that murder, another witness Mahboob did not support the case of prosecution, whose statement in ST No. 801 of 2007 was recorded on 08.09.2008, i.e. after the murder of Jamilu. It is further submitted by learned counsel for the complainant that the witness Om Pal Singh also did not support the case of prosecution due to fear of the murder of witness Jamilu, as he also was examined on 31.10.2008 in S.T. No. 801 of 2007 after the murder of witness Jamilu. 14. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the entire material on record. 14. I have given my thoughtful consideration to the submissions made by learned counsel for the parties and perused the entire material on record. From the statement (annexure-3) of the complainant Shyam Lal recorded as P.W. 1 in S.T. No. 801 of 2007, this fact is prima facie borne out that the deceased Kuldeep was carried by the applicant Sajid from his house on 08.1.2007 at about 7.30 PM and his murder was committed in the same night and his dead body was found lying in primary school on 09.01.2007 in the morning. The applicant has not furnished any explanation as to what time he departed himself from the company of the deceased after carrying him from his house. Therefore, having regard to all these facts and keeping in view the aforesaid submissions made by the learned counsel for the complainant and AGA, but without expressing any opinion about merit of the case, in this heinous crime of committing the murder of an innocent person without any lawful excuse, the applicant does not deserve bail. 15. In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008(68) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 16. Consequently, the bail application is hereby rejected. 17. The trial court concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months making sincere efforts and applying the provisions of section 309 Cr.P.C. 18. S.S.P. Muzaffar Nagar is also directed to depute special messenger to procure the attendance of rest witnesses after obtaining their summons from the court concerned and it must be ensured that all the witnesses are produced in session trial No. 801 of 2007 without causing any delay. 19. The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P. Muzaffar Nagar for necessary action.