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2020 DIGILAW 266 (UTT)

Sajid v. State Of Uttarakhand

2020-07-03

SHARAD KUMAR SHARMA

body2020
JUDGMENT Sharad Kumar Sharma, J. - These Bail Applications, are heard through Video Conferencing. 2. These are two connected bail applications wherein, the applicants who are total three in number, have sought their bail for the offence punishable under Section 302 IPC, which has been registered against them initially by way of a FIR No.121 of 2017, dated 27.04.2017 at P.S. Bhagwanpur, District Haridwar. Later on, on submission of charge sheet, it was committed for Trial, by the Sessions Court which was registered as Sessions Trial No.168 of 2017, which is being tried by the court of IVth Additional District and Sessions Judge, Haridwar at present and is pending Trial. 3. The brief facts of the case are that an incident, which has chanced on 27.04.2017, and it has been alleged in the FIR that the victim Satish @ Mangey Ram, who accompanied his driver Ashok Kumar, for getting his Scorpio Car serviced, when they were engaged in the said work of getting their car serviced, in a service station on 27.04.2017, which was situated at Sikroda Road, Haallu Majra Chowk at Bhagwanpur, District Haridwar, it is contended in the FIR by the complainant that on account of some village rivalry as it has been complained of that there were certain acquisitions made by the victim/deceased as against the assailants by the victim, due to village party bandi and alleging an act of defamation being conducted by the victim in public against the complainant, it is contended that Mehtab, Wajid, Rashid and Sajid, were jointly indulged in the commission of offence of assaulting Satish @ Mange Ram, who as a consequence thereto it has resulted into his death due to the injuries suffered by him, which was alleged to have been made by Mehtab by striking blow with a hammer. 4. The allegations leveled in the FIR was that when Satish, @ Mange Ram, the deceased, was engaged in getting his car serviced, the accused persons are shown to have visited the service station, they had a minor altercations and when the things went out of control, it is alleged that Mehtab had picked up a hammer from the workshop and hit the deceased Satish @ Mange Ram, on his head; causing grievous injuries, which is alleged to had been the reason for his death in accordance with the post mortem report. 5. 5. As far as the present applicants of the two bail applications are concerned, they are shown to be the persons, who had performed the role of catching hold, Wajib and Sajid the applicants of Bail Application No.2638 of 2019 are alleged to have held the hands of the deceased Satish and Rashid, the applicant of Bail Application no.2567 of 2019, is said to have held the legs of the deceased Satish @ Mange Ram so that he may not run away. The prosecution has further alleged in the FIR, that the driver Ashok, who accompanied the deceased; Satish @ Mange Ram had seen the incident, besides this there were other co-witnesses also i.e. Sandeep and Anand, who are alleged to have seen the incident, and as such an apparent offence of catching hold as against Wajid, Rashid and Sajid, the applicants herein is made out. 6. The matter was investigated by the Investigating Officer, who examined as many as 35 witnesses and ultimately a charge sheet was submitted; being Charge Sheet No.125 of 2017 dated 21.07.2017, the Investigation Officer in his report, has observed that as far as Wajid, Rashid and Sajid, the present applicants herein are concerned, no offence as such has been made out against them and as such the name of the present applicants did not appear in the charge sheet showing them to be involved in the commission of offence. On submission of charge sheet before the Magistrate concerned, the cognizance was taken and Sessions Trial No.168 of 2017, was registered to be tried against the person against whom the charge sheet has been submitted. 7. Its during the course of trial that the learned Sessions Court passed an order under Section 319 of Cr.P.C. after considering the material on record and the deposition made by PW1, PW2 and PW3, the eye witnesses of the incident for summoning the present applicants for facing trial. As far as the order of summoning under Section 319 Cr.P.C. is concerned, we need not to venture into it at this stage because the same has attained finality up to the Hon'ble Apex Court vide its judgment dated 15.07.2019, on the culmination of the proceedings of Criminal Revision by this Court being Criminal Revision No.38 of 2019, which has been dismissed on 01.02.2019, as against the summoning order under Section 319 Cr.P.C. 8. The Senior Counsel for the applicants submits that in view of there being a contradictory statement recorded by the eye witnesses of the incident and the role which has assigned to the present applicants, that in itself is doubtful and which creates a doubt with regard to their very presence of the applicants at the place, where the incident has chanced, because there had been a contradictory statements recorded including, their being the contradiction in the statement which has been recorded by PW2 Ashok, the driver of the deceased, who accompanied the victim/deceased, who had been variating in recording of his statement; as to whether he has actually seen the incident or not? The counsel for the applicants submits that as far as one of the eye witnesses is concerned i.e. Ashok, in view of his statement recorded on 04.02.2020, it does not show that there had been an indulgment of the present applicants in commission of the offence, because the statement recorded therein does not exactly reflect that Ashok, has actually seen the incident and the applicants role alleged in commission of offence. As far as PW1 is concerned i.e. Hitler, who is the son of victim/deceased Satish @ Mange Ram, it is argued by the Senior Counsel for the applicants that he being the son of the deceased and not being a person present on the date and the place of the incident, much reliance can be placed on his statements recorded because that would be a subject matter of appreciation by the trial court. 9. Her argument is further that the only eye witness, who has supported the prosecution case regarding the occurrence of the incident; manner in which it was committed and the involvement of the present applicant in commission of the offence is that of PW3 Anand; her argument is that the sole testimony of Anand in itself cannot be taken as to be the basis to hold the applicants in jail, as they happened to be in custody since quite long time. The Senior Counsel for the applicants further submitted that there is a doubt created in prosecution story with regard to the very presence of the present applicants on the spot where the offence was committed, she in her arguments supported it with the statement of one of the resident of village, namely, Kalim, who has recorded the statement that the resident of the village has informed that the applicants had been wrongfully named in the commission of the offence. If his statement too is taken into consideration it will not support the story of the prosecution with regard to the presence of the applicants at the spot of commission of the offence on 27.04.2017. 10. While on the contrary, the counsel for the complainant Mr. Ajay Veer Pundir, had submitted that it will not be safe to release the applicants on bail for the reason being that there is all possibility that they may affect the trial by winning over the witnesses, as they have done it earlier by winning over the Investigating Officer, who had excluded their name to be mentioned in the charge sheet with regards to their involvement in the commission of offence, which was later on, rectified by the court of Sessions vide its order of summoning by the learned trial court. He further submits that even a sole testimony of Mr. Anand PW3, would suffice to establish the role of the present applicants in commission of offence. He further expressed an apprehension that in case if the applicants are released on bail looking to their past conduct since they have not diligently participated in the proceedings of the trial and they had only put in appearance, when non bailable warrants were issued on 16.08.2019, and that too when the same was not executed by the SHO, because of the connivance of the S.H.O along with the present applicants. The S.H.O was summoned by the Sessions Court vide its order dated 09.09.2019 to appear before the Magistrate concerned and later on only when the proceedings under Section 82 of the Cr.P.C. was undertaken against the applicants by an order dated 03.10.2019, they had put in appearance and were taken in custody for being tried for the offence. 11. A similar argument has been extended by the learned Deputy Advocate General Mr. 11. A similar argument has been extended by the learned Deputy Advocate General Mr. Sandeep Tandon, to the effect that in case if there is a release of the applicants on bail, it would be very difficult to ensure a fair conduct of trial, and there would be all probability of winning over of the witnesses and he submits that it is as a consequence of the said efforts made by the applicants that Ashok Kumar, who was initially alleged to be the eye witness, has now turned to be hostile. Though, if the counter affidavit filed by the Government Advocate, is taken into consideration as per the report submitted by the District Criminal Research Bureau, it has been found that the applicants are not carrying any criminal history. Owing to the fact that there has been contradictory statements given by the witnesses since, there is a bonafide doubt at this stage when bail is being considered about the presence of the applicants on the place of incident and they indulging in the commission of offence, coupled with the fact that they do not have any criminal history, and also an issue which will creep in for consideration would be as to whether catching hold would fall to be an offence under Section 302 IPC. These are all factual aspects, which are to be decided by the trial court and during the prolonged pendency of proceedings of trial the applicants cannot be permitted to languish in jail for an indefinite period. In such an eventuality and for the reasons given aforesaid, the applicants Sajid, Wajid and Rashid are directed to be released on bail subject to the following conditions: 1. Each of the applicants will furnish their personal bond by way of applicants, before the Sessions Court, where the trial is pending consideration. 2. Each of the applicants will furnish their personal security of Rs.50,000/- each before the Sessions Court concerned. 3. Besides this they will also furnish two reliable sureties of the like amount to the satisfaction of the Magistrate concerned who would be residents of same village/place to which applicants belong. 4. The applicants would diligently and regularly participate in the proceedings on each date, by putting in their appearance on the dates fixed by the Sessions Court, until and unless their absence is on a reasonable ground, to the satisfaction of the Magistrate concerned. 12. 4. The applicants would diligently and regularly participate in the proceedings on each date, by putting in their appearance on the dates fixed by the Sessions Court, until and unless their absence is on a reasonable ground, to the satisfaction of the Magistrate concerned. 12. Subject to the aforesaid observation, the bail applications are allowed. The applicants are directed to be released.