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Allahabad High Court · body

2019 DIGILAW 2532 (ALL)

Wali Mohammad v. State of U. P.

2019-11-13

KARUNA NAND BAJPAYEE

body2019
JUDGMENT : 1. Supplementary filed today on behalf of applicant is taken on record. 2. Heard Shri V.P. Srivastava, learned Senior Counsel assisted by Shri Mohd. Monis, learned counsel for the applicant as well as Shri Sushil Kumar Pandey, learned counsel appearing for the informant and also learned A.G.A. 3. Perused the record. 4. Submission of counsel for the applicant is that after the murder in question the police was called up through Dial 100 facility which reached the spot after receiving information on 18.4.2019 at 08.13 A.M. and subsequently the inquest proceedings were also performed on the body of the deceased which commenced at 11.00 A.M. and were concluded at 01.00 P.M. But during this entire course the name of the applicant was not disclosed by anyone as accused. The F.I.R. had been lodged quite belatedly at 11.24 P.M. on 18.4.2019 much after inquest, by the father of the deceased namely Nisar, who also happens to be a witness of the inquest. It was emphasized by the counsel that though in the 5. F.I.R. the allegations have been made against the applicant and he has been made the accused but conspicuously nothing was whispered against him during inquest proceedings. It was also submitted that according to the version of F.I.R., which was lodged on 18.4.2019 at about 11.24 P.M., it was alleged that two witnesses Nafees and Shamshad had seen the co-accused Nausad and Shoeb dragging out the deceased from applicant's house on 18.4.2019 at about 6.00 or 6.30 A.M. Submission is that when aforesaid two witnesses Nafees and Shamshad were examined by the police, they only nominated co-accused Shoeb by name and not the applicant. Though it was alleged that Shoeb was accompanied by certain other companions but their names were not disclosed. In fact even this was not clearly stated as to from whose house the deceased was seen being dragged out. Contention is that these two witnesses Nafees and Shamshad belonged to the same village who knew the applicant well and there was no reason not to disclose the name of applicant or the other co-accused who also belonged to the same village. Contention is that these two witnesses Nafees and Shamshad belonged to the same village who knew the applicant well and there was no reason not to disclose the name of applicant or the other co-accused who also belonged to the same village. Argument is that in these circumstances it is clearly deducible that the nomination of applicant is the result of afterthought and confabulations as there is no adequate explanation either about the omission of his name in the statements u/s 161 Cr.P.C. of aforesaid two witnesses or about the non disclosure of name of any accused before the police during the course of inquest proceedings where all the police officers were present and where the first informant was not only present but was also a witness of inquest proceedings. Submission is that though the scope of Section 174 of Cr.P.C. has its own limitations and non mentioning of the name of the accused in inquest proceedings cannot be termed to be an illegality but in a case where the F.I.R. was yet to be lodged and where the police had not been yet informed about the names of the accused persons who committed the crime, there could not have been anything more important than the pressing anxiety of the police to know the name of participants in the crime. Even the father of the deceased would have been most interested person to disclose the identify of the accused persons, if he had any clue about them and it shall be the most unnatural conduct of a father not to disclose the names of the accused, if he knew them at all at the time when the team of police was very much present performing the inquest proceedings and there could not have been any good reason for the police not to mention the name of the accused in some way or the other in the inquest proceedings, if it had acquired knowledge about the same. Submission is that the contents of the inquest show that till that stage the police had absolutely no inkling about the accomplices of the crime. Submission is that the contents of the inquest show that till that stage the police had absolutely no inkling about the accomplices of the crime. It was also argued that even the witnesses Nafees and Shamshad, if they had already seen the accused persons dragging out the deceased from the house of the applicant at 6.00 or 6.30 A.M. on 18.4.2019, there was no good reason for them to keep this fact a secret and not to share it either with family members of the deceased or with the police. It has also been submitted that in view of the conspicuous facts and circumstances of the case, the case of applicant appears to be at any rate distinguishable from that of co-accused Shoeb whose name was disclosed by the witnesses in the statements recorded u/s 161 Cr.P.C. Submission is that aforesaid circumstances strongly indicate about the false implication of the applicant after consultations and at least a prima facie case of bail in his favour is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been submitted that the applicant is in jail since 25.5.2019 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. 6. Learned A.G.A. has opposed the prayer for bail. After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial, the case of the applicant being distinguishable and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail. 7. 7. Let the applicant-Wali Mohammad, involved in Case Crime No.0139 of 2019, u/s 302, 120-B I.P.C., P.S.-Bhognipur, District-Kanpur Dehat be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :- (1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever. (2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice. 8. It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail. 9. It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.