Research › Search › Judgment

Uttarakhand High Court · body

2016 DIGILAW 582 (UTT)

Sarfaraj Ahmad v. State of Uttarakhand

2016-09-16

U.C.DHYANI

body2016
JUDGMENT : U.C. Dhyani, J. 1. Since both the bail applications arise out the same incident, therefore, they are being decided together for the sake of brevity and convenience. 2. Applicants namely Sarfaraj and Usman who are in jail in connection with FIR No.160 of 2015, relating to offences punishable under Sections 302 and 120B of IPC, at Police Station Kunda, District Udham Singh Nagar, have sought their release on bail. 3. Heard learned counsel for the parties, perused the material brought on record and considered the grounds taken up in the bail applications. 4. Victim died on 08.12.2015. An entry is made in the General Diary that it was an accidental death. The dead body of the deceased was recovered on a highway. In the inquest report, brother of the deceased did not raise any objection that it is not a case of accident, but it is a case of murder. None of them apprehended that the victim was killed. Post mortem was conducted on 09.12.2015. The FIR was lodged on 22.12.2015 after 14 days of the incident. As stated earlier, the case was registered under Section 304A IPC as per General Diary entry. Even in the FIR, which has been lodged after 14 days, none has been named. It also says that some unknown miscreants killed the brother of informant. The reason for delay in lodging the FIR is attributed to last religious rites of the deceased. 5. Prosecution has brought out the case that Sarfaraj Ahmad had illicit relations with Shahana Parveen, wife of the deceased and that is why Sarfaraj Ahmad wanted to eliminate Nawab (husband of Shahana Parveen). Prosecution has also brought out a case that there are innumerable call details between Sarfaraj Ahmad and Shahana Parveen for the duration 01.05.2015 to 08.12.2015. Sarfaraj hired the killers and they eliminated the victim. It is also the case of prosecution that victim was made to consume excessive liquor and was also injected Phenergan and Fortwin. Thereafter, he was taken to a place in a car where his body was thrown and crushed by the car and that is why so many injuries were sustained by him. The same is evident from ante mortem injuries shown in the post mortem report. 6. Learned Brief Holders also submitted that Phenergan and Fortwin injections were recovered on the pointing out of the accused persons. The same is evident from ante mortem injuries shown in the post mortem report. 6. Learned Brief Holders also submitted that Phenergan and Fortwin injections were recovered on the pointing out of the accused persons. Sarfaraj was also seen in the company of hired killers and identified by witnesses in the test identification parade. 7. Learned Senior Advocate appearing on behalf of Sarfaraj also argued that Sarfaraj, in fact, was arrested on 21.12.2015 and shown to have been arrested subsequently on 25.12.2015 night only when informer came to Police Station and identified Sarfaraj. 8. While deciding these bail applications, this Court is not entering into such controversy as to when Sarfaraj was arrested and when he was actually shown to be arrested. 9. Confessional statement of Sarfaraj Ahmad must have been reflected in the post mortem report, but that is not so. Even if it be presumed that Sarfaraj and Shahana Parveen were in intimate relationship which may be a driving point to eliminate Nawab Ahmad, but that motive alone appears to be insufficient to bring home the guilt to the accused persons at this stage. 10. At present, the Court is guided by the fact that if Sarfaraj made confessional statement that the deceased was made to consume excessive liquor and was administered some injections, there should have some traces of alcohol and drug in post mortem report which was conducted on the very next day of the incident. But there is no trace of alcohol or drug in the post mortem report. 11. Learned Prosecutors carefully scrutinized the post mortem report only to find that there is no mention of alcohol and drug contents in the post mortem report. The cause of death of the victim is traumatic asphyxia and haemorrhage shock as a result of ante mortem injuries to chest, lungs, liver and spleen. A very look at the post mortem report will impress anybody. It was not prepared in routine and cursory manner. 12. There appears no coherence in confessional statement made to the police and the medical evidence. 13. This fact alone, (i.e. no trace of alcohol or drug in post mortem report) drives this Court to grant bail to the applicant Sarfaraj Ahamad and his alleged hired killer Usman (another applicant). 14. It was not prepared in routine and cursory manner. 12. There appears no coherence in confessional statement made to the police and the medical evidence. 13. This fact alone, (i.e. no trace of alcohol or drug in post mortem report) drives this Court to grant bail to the applicant Sarfaraj Ahamad and his alleged hired killer Usman (another applicant). 14. Learned counsel for the applicants submitted that they are ready to furnish reliable sureties to the satisfaction of the court concerned if they are granted bail. 15. Considering the facts and circumstances of the case, this Court is of the opinion that the applicants should be enlarged on bail. 16. The Bail applications are allowed. 17. Let the applicants namely Sarfaraj and Usman be enlarged on bail on their each executing a personal bond and furnishing two reliable sureties, each of the like amount to the satisfaction of the court concerned. 18. If at any point of time, it is found that the applicants are misusing the bail, the learned court concerned shall be at liberty to cancel their bail, in accordance with law.