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2009 DIGILAW 3779 (ALL)

Shakeel Ahmad v. State of U. P.

2009-12-16

RAVINDRA SINGH

body2009
JUDGMENT: Hon'ble Ravindra Singh, J. Heard Sri I.M.Khan, Sri R.K.Tripathi, Sri R.J.Alvi and Sri Shahab Uddin, learned counsel for the applicant, learned A.G.A. for the State of U.P., Sri Deepak Dubey, Sri R.B.Sahai, learned counsel for the complainant and perused the record. This Bail application has been filed by the applicant Shakeel Ahmad with a prayer that he may be released on bail in case crime no. C-6 of 2005, under section 302 I.P.C., Police Station Khakreru, District Fatehpur. 2. The facts, in brief, of this case are that FIR has been lodged by Chandra Kumar on 16.7.2005 at 12.10 p.m. in respect of the incident which had occurred on 31.5.2005 at 3.00 p.m., the applicant and two other co-accused persons are named as accused in the FIR, the FIR has been lodged in pursuance of the order passed by learned Magistrate concerned in exercise of powers conferred under section 156(3) C.P.C.. It is alleged that on 31.8.2005, the first informant and his brother Govardhan were going to meet his sister, who was married in Fatehpur, at about 3.00 p.m. when they reached near village Inayatpur, Shankar dacoit along with Muskan Miyan, Anwar, Balaghat Ali, Asif Jama, Mohd. Ahmad, Amaldar ,Zahir, Sahab , Atiq Ahmad, applicant Shakeel, Naim, Madau, Amin, Satosh and 3 or 4 unknown persons armed with weapons, met them and at the the exhortation of co-accused Shanker, the applicant an other co-accused Sahab discharged shots , consequently, the brother of the first informant, namely, Govardhan sustained gun shot injury, who died on spot. The firing was done at the fist informant also but he could not sustain, the injury because, he ran away to village Inayatpur. Prior to the alleged incident, Shanker and other co-accused had committed the murder of the uncle of the first informant, namely, Santa and his dead body was disappeared. According to post mortem examination report, the deceased had sustained two fire wounds of entry, having the exit wound, the applicant applied for bail before the learned Additional Sessions Judge, Fatehpur who rejected the same on 9.10.2007. 3. It is contended by learned counsel for the applicant that FIR is too much delayed, without having any plausible explanation. The presence of the first informant at the alleged place of occurrence is highly doubtful because the first informant was having equal enmity as the deceased was having with the accused persons. 3. It is contended by learned counsel for the applicant that FIR is too much delayed, without having any plausible explanation. The presence of the first informant at the alleged place of occurrence is highly doubtful because the first informant was having equal enmity as the deceased was having with the accused persons. The accused persons were many in numbers, it was not possible for the first informant to escape from the place of occurrence as unhurt. The inquest report of the deceased was prepared on 1.6.2005 as of unknown deceased, its information was given to police station by Atiq Ahmad, the witness of the inquest report is Ram Gopal also, who is father of the first informant. Even then, it was not informed that the deceased has been murdered by the applicant and other co-accused persons. It is also surprising that the dead body was has not been identified. The accused persons named in the FIR were having inter-se enmity. The FIR lodged by co-accused Atiq Ahmad on 16.7.2005 in respect of the same incident which is not reliable. It has been lodged in defence. The co-accused Sahab whose case is based on the same footing with the case of the applicant has been released on bail by another bench of this Court on 20.9.2007 in criminal misc. bail application No. 18179 of 2007. 4. In reply of the above contention, it is submitted by learned A.G.A. and counsel appearing on behalf of the complainant that according to the prosecution version, the role of causing injuries has been assigned to the applicant and co-accused Sahab, the deceased has sustained two gunshot injuries, prior to the alleged incident, uncle of the first informant was also murdered by co-accused Shanker and others , that inquest report was deliberately prepared on the basis of the information given by the co-accused Atiq Ahmad, the cross version is not reliable, it has been brought to create a defence. The co-accused Atiq Ahmad is father of the applicant, he himself is a hardened criminal, the applicant and his father has been convicted for life imprisonment by the Sessions Judge, Fatehpur in another case, its appeal is pending before the high court in which applicant has been released on bail, after releasing on bail, he is involved in another case. The co-accused Atiq Ahmad is father of the applicant, he himself is a hardened criminal, the applicant and his father has been convicted for life imprisonment by the Sessions Judge, Fatehpur in another case, its appeal is pending before the high court in which applicant has been released on bail, after releasing on bail, he is involved in another case. The applicant is history sheeter, the benefit of parity may not be given to the applicant because the applicant remained absconded for period of about 2 years. He is in jail since 10.5.2007, the applicant was granted bail in case crime no. 146-A of 2006 under sections 302, 147, 148, 149 I.P.C., police station Khakhreru, District Fatehpur on 3.9.2007 by another bench of this Court in criminal misc. application No. 15073 of 2007, the applicant was convicted for life on 23.11.2005 under section 302 I.P.C., he has preferred Criminal Appeal No. 291 of 2006, which is pending. The trial of this case is at the conclusion stage, therefore, the applicant may not be released on bail. The benefit of parity may not be provided to the applicant. 5. Considering the facts, circumstances of the case, submission made by learned counsel for the applicant, learned A.G.A.,learned counsel appearing on behalf of the complainant, the allegation against the applicant and co-accused Sahab is that they discharged the shots consequently, the deceased sustained injury. According to the post mortem examination report, the deceased had sustained two fire arm wounds of entry, the motive has also been attributed to the applicant, the applicant is having criminal antecedent, he is having criminal back ground and he has been convicted by the Sessions Court for life imprisonment, the trial is in progress, with having all respect to the order dated 20.9.2007, passed by another bench of this Court granting bail to the co-accused Sahab, I do not feel it proper to extend the benefit of the parity to the applicant because he has been convicted for life imprisonment by the Sessions Court and is involved in some other criminal cases also, the benefit of parity may not be given as a rule. The trial is in progress to ensure the fair trial, it is not proper to release the applicant on bail. The prayer for bail is refused. Accordingly, this application is rejected.