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2009 DIGILAW 3778 (ALL)

Mohd. Tahir v. State of U. P.

2009-12-16

RAVINDRA SINGH

body2009
JUDGMENT: Ravindra Singh, J. Heard Sri Satish Trivedi, learned Senior Advocate, assisted by Sri Bharat Singh and Sri K.D.Tiwari, learned counsel for the applicant, learned A.G.A.for the State of U.P.and Sri Dilip Kumar, Sri Rajiv Gupta, Sri Rajrshi Gupta and Sri Anil Kumar Singh learned counsel for the complainant. This bail application has been moved by the applicant Mohd. Tahir with a prayer that he may be released on bail in case crime No. 146 of 2009 under section 302 I.P.C., P.S. Nagphani, District Moradabad. 2. The facts, in brief, of this case are that the FIR has been lodged by Smt. Jahan Ara on 6.4.2009 at 11.30 p.m. in respect of the incident which had occurred on 22.3.2009 at about 11.00 p.m., the applicant and co-accused Hashim, co-accused Firasat and co-accused Mohd. Quamar are named in the FIR. It is alleged that Mohd. Farid, husband of the first informant, was murdered on 23.3.2009, at the last time, a false case was lodged against him by Mohd. Hashim at the instance of the applicant, the police was being pressurised to arrest Mohd. Farid. On 22.3.2009 at about 11.00 p.m., the applicant went to the house of first informant and asked that he had made talks with Firasat and Mohd.Umi, they have called the deceased Modh. Farid but he refused to go in the night, then the applicant went to the house of Mohd. Imran from where he asked the first informant that the deceased would be lifted by the police and he would be insulted. Then the deceased was taken by the applicant from his house, the first informant saw from her Balcony that two or three persons were standing outside her house, the deceased went in their company. The first informant remained disturbed whole of the night because the deceased did not return, she gave telephonic massage also but the applicant replied that talk was going on, in the morning of 23.3.2009 at about 10.30 a.m., the applicant came to the house of the first informant and demanded Rs.12,000/-, papers and clothes of the deceased, the first informant asked that she was not able to contact with her husband because his telephone was switched off. Then it was told by the applicant that the telephone battery of the deceased had discharged, thereafter, the deceased was brought by the applicant at about 12.00 o'clock in the dead condition, on query the applicant replied that the deceased was murdered by the police. According to the post mortem examination report, the deceased had sustained an abraded contusion on the left side of nose, the cause of death could not be ascertained hence viscera was preserved. The applicant applied for bail before the learned Sessions Judge, Moradabad, who rejected the same on 28.8.2009. 3. It is contended by learned counsel for the applicant that FIR of this case is too much delayed. It is surprising that the deceased was taken from his house by the applicant and others in the night of 22.3.2009, but report has been lodged after the deceased was murdered by the applicant, there was no reason for the applicant to bring the dead body of the deceased to the house of the first informant. It appears that story of taking away from the house and after committing the murder bring it to the house of informant is absolutely false and concocted because the deceased had not gone from his house, the deceased had died at his house but to conceal the real fact, the FIR has not been promptly lodged, it has been lodged on 6.4.2009. According to the post mortem examination report, the deceased had sustained only one abraded contusion, having dimension of 2 cm x 6 cm on the left side of nose, the cause of the death could not be ascertained, hence viscera was preserved, it does not show that by exercising power, the poison was administered to the deceased, according to the viscera report, the death was by intake of poisonous insecticide. The first informant herself gave an applicant in writing to police station Nagphani, then G.D.entry was made on 23.3.2009 as G.D. Entry No. 26 at 15.10, mentioning therein that her husband died all of a sudden on 23.3.2009. On that information, the inquest report was prepared. The applicant had lodged the FIR on 23.3.2009 at 5.20 p.m. in respect of the incident which had occurred on 23.3.2009 at 8.00 a.m. against Mohd. Hashim, Firasat son of Liyakat and 3 others, in case crime no. On that information, the inquest report was prepared. The applicant had lodged the FIR on 23.3.2009 at 5.20 p.m. in respect of the incident which had occurred on 23.3.2009 at 8.00 a.m. against Mohd. Hashim, Firasat son of Liyakat and 3 others, in case crime no. 107 of 2009 under section 395, 397 I.P.C., during investigation, the manner of occurrence of the present case has also been changed. The applicant is innocent, he has not committed the alleged offence he has been falsely implicated only on account of rivalry , the applicant is not having any criminal antecedent, he may be released on bail. He is in jail since 2.7.2009. 4. In reply of the above contention, it is submitted by learned A.G.A. and the counsel for the complainant that the applicant is the main accused, who committed the murder of the deceased in pre-planned manner, he is the person who took away the deceased from his house and brought the dead body of the house of the deceased only to show his innocence whereas cause of the death was on account of intake of poisonous insecticide. The applicant was having strong motive to commit the murder of the deceased because the deceased was running cable network business in which the applicant was also partner. The deceased was having a business rivalry with Firasat, the proprietor of F.K.Cable. He had lodged the false FIR against the deceased in the matter pertaining to cable net work business, he was creating the pressure upon the police to apprehend the deceased in that case, the applicant persuaded the deceased to go in the company outside the house in the night because he had come with the collusion of Firasat, the deceased had initially declined to go in his company, but due to fear with the police and to enter into compromise, the deceased was taken by the applicant in the night , the applicant did not permit the first informant to have talk with the deceased, ultimately gave wrong information that talk of compromise was going on. He also came to the house of the deceased to mislead the first informant and demanded Rs. 12,000/-, papers and some clothes of the deceased. He also came to the house of the deceased to mislead the first informant and demanded Rs. 12,000/-, papers and some clothes of the deceased. Ultimately, the applicant came to the house of the first informant with the dead body of the deceased and gave a wrong picture that the deceased has died as a result of beating given by the police. But police was with the collusion of the accused persons even the FIR was not written. The inquest report was prepared on the basis of the alleged information given by the first informant. The death of the deceased has taken place due to intake of poisonous insecticide. The FIR of this case has been lodged by the police on the order passed by DIG/SSP on 6.4.2009, the applicant has given contrary statement to the witnesses. He stated before the first informant that the deceased had died on account of beating given by the police but he narrated the different story to the other witnesses that the deceased had died due to hear attack. He had tried to get his treatment done at the clinic of Dr. P.K.Shukla & Dr. Nayyar, the applicant has committed the murder of the deceased at the instance of his enemy to usurp the amount of Rs. 5.50 lack which the deceased had arranged for the transaction , the same could not be finalised. The amount was given to the applicant, the independent person, who is an advocate from whose house the deceased had gone with the applicant, he has supported the prosecution story, in case, the applicant is released on bail, he shall tamper with the evidence. 5. The amount was given to the applicant, the independent person, who is an advocate from whose house the deceased had gone with the applicant, he has supported the prosecution story, in case, the applicant is released on bail, he shall tamper with the evidence. 5. Considering the facts, circumstances of the case and from the perusal of the record it appears that the present case is based on circumstantial evidence, though there is no direct evidence of murder but the allegation that the applicant was a business partner of the deceased, who pressurised the deceased to go in the night for the purpose of compromise with his enemy Firasat Khan, and he was taken from his house though the deceased was reluctant, the applicant did not permit the first informant to have talk with the deceased, the mobile of the deceased was switched off, the applicant brought the deceased in dead condition to the house of the first informant with a story that the deceased had died due to beating given by the police, on 23.3.2009 the application was given by the first informant to the police that her husband died all of a sudden. According to the post mortem examination report, the cause of death could not ascertained, hence viscera was preserved, in viscera report poisonous insecticide was found, the conduct of the applicant being the partner of the deceased was not above board, this case come in the criteria of organised crime. The allegation against the police has also made regarding the collusion with the accused persons, in such circumstances, to ensure the fair trial it is not proper to release the applicant on bail. The prayer for bail is refused. 6. Accordingly, this application is rejected.