ORDER : Order on Criminal Misc. Bail Application No.02 of 2020 in Criminal Appeal No. 5054 of 2021 on behalf of appellant Mohd. Tarik; Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.806 of 2020 on behalf of appellant- Bablu @ Israr Ahmad; Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.792 of 2020 on behalf of appellant- Mohammad Asif; Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.791 of 2020 on behalf of appellant- Mohammad Arif; Criminal Misc. Bail Application No.Nil of 2020 in Criminal Appeal No.2845 of 2020 on behalf of appellant- Mohammad Shaqib. 1. Heard Shri Amit Kumar Srivastava, Shri Manish Dwivedi, Shri Rajiv Lochan Shukla, Shri Santosh Kumar Pandey, learned counsel for the appellants, Shri R.P.S. Chauhan, learned counsel for the informant and learned A.G.A. for the State-respondents. 2. All the Bail Applications are being disposed of by this common order. 3. All criminal appeals are directed against the impugned judgment conviction and sentence dated 16.12.20219 passed by Additional Sessions Judge, Room No.1, Allahabad in Sessions Trial No.287 of 2012 (State Vs. Mohammad Tariq and others) arising out of Case Crime No.524 of 2011 under Sections 147, 148, 302/149 and 7 Criminal Law Amendment Act; S.T. No.288 of 2012 (State of U.P. Vs. Mohammad Shaqib), arising out of Case Crime No.6 of 2012, under Section 3/25 Arms Act; S.T. No.289 of 2012 (State of U.P. Vs. Mohammad Arif) arising out of Case Crime No.7/2012, under Section 3/25 Arms Act and S.T. No.290 of 2012 (State Vs. Mohammad Tariq) arising out of Case Crime No.16 of 2012, under Section 3/25 Arms Act, Police Station Nawabganj, District Allahabad passed by the learned Additional Sessions Judge, Court No.1, Allahabad. 2. Brief facts of the prosecution story are as under: On the information of informant, Rais Ahmad, F.I.R. at Crime No.524 of 2011, under Sections 147, 148, 302 I.P.C. and 7 Criminal Law Amendment Act, came to be registered against the appellants. 2. Brief facts of the prosecution story are as under: On the information of informant, Rais Ahmad, F.I.R. at Crime No.524 of 2011, under Sections 147, 148, 302 I.P.C. and 7 Criminal Law Amendment Act, came to be registered against the appellants. It is alleged that in the morning of 20.12.2011 informant (Rais Ahmad, Mohammad Hashim s/o Rais Ahmed and Useer Ahmad s/o Mukhtar Ahmad had come outside of their house to arrange for labours and when they reached near the house of one Naim son of Rasheeduddin then Mohammad Tariq, Mohammad Arif, Mohammad Shaqib, Mohammad Asif sons of Maqsood Ahmad and one Bablu son of late Anwaar Ahmad, who were armed with rifle and (CMPs) country made pistol had come in front of them and asked them with exhortation that they will commit their murder because they had served to one Kallu Pradhan in the election of Pradhani and started firing upon them with their respective fire arms. It is further alleged that Mohammad Tariq had fired upon Mohammad Hashim by which he sustained fire arm injury on his chest and Mohammad Shaqib had fired upon Useer Ahmad by which he also sustained fire arm injury. Witnesses, namely, his son Mohammad Tariq and many villagers had reached at the spot and witnessed the incident. Mohammad Hashim died instantaneously whereas Useer Ahmad died at S.R.N. hospital during his treatment. 3. Investigation was commenced. The Investigating Officer has recorded the statement under Section 161 Cr.P.C. of informant Rais Ahmad. 4. On 20.11.2012 at 3:00 p.m. inquest over dead body of the deceased Mohammad Hashim, started to be conducted and the same has been concluded at 4:00 p.m.. Similarly, on 20.12.2011 at 4:15 p.m. the proceedings of inquest of the dead body of deceased Useer Ahmad was conducted and the same came to be concluded at 5:15 p.m. 5. Dead bodies of the deceased Mohammad Hashim and Usser Ahmad along with F.I.R. and necessary papers were forwarded to S.R.N. Mortary Allahabad to conduct their autopsies so that the real cause of their death could be ascertained. Accordingly, autopsies over the dead bodies of the deceased Mohammad Hashim and Usser Ahmad were conducted on 21.12.2011. 6. The Investigating Officer during investigation also recorded the statements of eye witnesses, namely, Mohammad Tariq and others. 7. Accordingly, autopsies over the dead bodies of the deceased Mohammad Hashim and Usser Ahmad were conducted on 21.12.2011. 6. The Investigating Officer during investigation also recorded the statements of eye witnesses, namely, Mohammad Tariq and others. 7. As per the prosecution story, co-accused Mohammad Shaqib and Mohammad Arif were arrested on 02.01.2012 and one country made pistol and two live cartridges .315 bore from possession of co-accused Mohammad Shaqib and similarly, one country made pistol and two live cartridges .315 bore from the possession of co-accused Mohammad Arif have been recovered. It is further alleged that on 09.01.2012, the Investigating Officer has arrested the co-accused Mohammad Tariq and out of his possession one CMP and two live cartridges of .315 bore were recovered. Co-accused, Mohammad Shaqib, Mohammad Arif and Mohammad Tariq on their arrest made disclosure statement and also confessed their guilt. 8. During investigation, co-accused Mohammad Asif and Bablu alias Israr Ahmad on 23.01.2012 and 30.01.2012 respectively were arrested by the Investigating Officer and in their recorded statements they are stated to have confessed their guilt. On the basis of recovery of country made pistol and live cartridges, the Investigating Officer has submitted separate charge sheet against one Mohammad Shaqib, Mohammad Arif & Mohammad Tariq in pursuance of Case Crime No. 6/12, 7/12 and 16/12 respectively under Section 3/25 Arms Act, Police Station Nawabganj. 9. The Investigating Officer on the strength of the evidence collected during investigation, submitted a challan/charge sheet under Sections 147, 148, 149, 352 I.P.C. and 7 Criminal Law Amendment Act against all five accused. After completing the formalities under Sections 207 Cr.P.C., the learned Magistrate vide order dated 12.03.2012 Case Crime No. 524 of 2011, under Sections 147, 148, 149, 302 I.P.C. and 7 Criminal Law Amendment Act committed to District Sessions Judges for the trial of the appellants/accused and learned Magistrate on 12.03.2012 Case under Section 3/25 Arms Act, arising out of Case Crime No.6/12, 7/12 & 16/12 respectively against co-accused appellant Mohammad Shaqib, Mohammad Arif and Mohammad Tariq also made over to district sessions Judges for trial. 10. In the District Sessions Court, in pursuance of order dated 24.09.2019 of Sessions Trial had been consolidated in which sessions trial no. 247 of 2012 has been treated as leading case. 10. In the District Sessions Court, in pursuance of order dated 24.09.2019 of Sessions Trial had been consolidated in which sessions trial no. 247 of 2012 has been treated as leading case. On 08.06.2012, in respect of Sessions Trial No.287 of 2012, under Sections 147, 148, 302/149 I.P.C. and 7 Criminal Law Amendment Act charges against all the five accused/appellants were framed to which all the appellants/accused denied the charges and claimed trial. Similarly, on 08.06.2012, the charge under Section 3/25 Arms Act in connection with trial Sessions Trial No. 289/12, 290/12 against co-accused which appellants Mohammad Shaqib, Mohammad Arif and Mohammad Tariq were framed to which they also pleaded innocence and claimed trial. 11. In order to prove, the charges against the appellant/co-accused prosecution, examined P.W.1 Raees Ahmad, P.W.2 Naim Uddin, P.W.3 Mohd. Tariq, P.W.4 Meraj Ahmad, P.W.5 Dr. Vimlendra Sekhar, who has conducted the post mortem of the deceased Mohammad Hashim, P.W.6 Ramesh Chandra Nikhil, P.W.7 Dr. Rishi Sahai, who has conducted the autopsy over the deceased Useer Ahmad, P.W.8 Prakash Singh as I.O., P.W.9 Mahamaya Prasad Singh, P.W.10 Pawan Kumar Singh as Constable Moharrir, P.W.11 Dinesh Kumar Mishra as Constable Moharrir and P.W.12 Narendra Singh. 12. Statements of appellants/accused under Section 313 Cr.P.C. have been recorded in which they have denied the oral, documentary evidence on the record and have stated that on account of enmity with the informant, they have been falsely roped in this case. They are innocence and deserve to be acquitted. However, appellants/accused have not expressed their willingness to examine any witness. 13. Prosecution has also adduced documentary evidence in the form of his Exhibit Ka-1 and Exhibit Ka-25 and also material Exhibit Ka.1 to 12. 14. All the appellants/accused have preferred criminal appeals under Section 374 Clause 2 of Cr.P.C. against the judgement and order dated 16.12.2019 passed by the Additional Sessions Judge, Court No.1, Allahabad in connection with S.T. No.287 of 2012 (State of U.P. Vs. Mohammad Tariq and four others) under Sections 147, 148, 302/149 I.P.C. and Section 7 Criminal Law Amendment Act arising out of Case Crime No.524 of 2011, Police Station Nawabganj, District Allahabad. 15. During pendency, in all the instant criminal appeals alongwith aforementioned Criminal Misc. Bail Applications, on behalf of all the five accused/appellants have been filed with the prayer that they be released on bail during pendency of the instant appeals. 15. During pendency, in all the instant criminal appeals alongwith aforementioned Criminal Misc. Bail Applications, on behalf of all the five accused/appellants have been filed with the prayer that they be released on bail during pendency of the instant appeals. It is submitted that the present Criminal appeals are not likely to be decided in the near future otherwise they shall suffer irreparable loss and injury. 16. It is also submitted that accused/appellants (Mohammad Arif, Mohammad Tariq, Bablu @ Israr Ahmad during trial, were on bail and they are incarcerated in jail since 11.12.2019 in pursuance of the impugned judgement and order dated 16.12.2019 whereas accused/appellants Mohammad Tariq and Mohammad Shaqib are detained in the judicial custody since the date of their arrest. They have suffered incarceration about ten years. 17. It is averred in the bail applications that P.W.1 Rais Ahmad for the first time, has assigned the specific weapon in the hand of all the accused which has not been stated earlier. It is also averred that the co-accused Mohammad Arif, Mohammad Shaqib and Mohammad Tariq were armed with country made pistol/tamancha whereas accused/appellants Bablu @ Iszrar Ahmad and Mohammad Asif were armed with rifles. P.W.1 co-accused Rais Ahmad has stated that deceased Useer Ahmad had sustained two gun shot injury, one on the arm and the other on the abdomen. On the perusal of autopsy report, it is evident that no injury on the abdomen of the deceased was found by the doctor. 18. P.W.1 Rais Ahmad has also stated that injury of the abdomen was caused by the country made pistol but injury on the arm caused by which weapon has not been stated by P.W.1 Rais Ahmad. 19. P.W. 2 Naim Uddin, has stated in his deposition that co-accused Mohammad Tariq and Mohammad Shaqib were armed with country made pistol but he has not disclosed that Babloo @ Iszrar Ahmad and co-accused Mohammad Arif were armed with weapon. However, he has next deposed that deceased Useer Ahmad has sustained two gun shot injuries but as per the post mortem, doctor has not found any such injury on his abdomen. 20. However, he has next deposed that deceased Useer Ahmad has sustained two gun shot injuries but as per the post mortem, doctor has not found any such injury on his abdomen. 20. It is also contended on behalf of the learned counsel for the accused/appellants that eye witness P.W.3 Mohammad Tariq has stated in his ocular evidence that the deceased Useer Ahmad had sustained two gun shot injuries one on the abdomen and the other on the arm but as referred above no injury on abdomen of deceased Useer Ahmad was found. P.W.3 Mohammad Tariq has also stated that co-accused Mohammad Shaqib had inflicted the abdomen injury to Useer Ahmad but who has caused armed injury amongst co-accused Mohammad Arif, Bablu @ Israr Ahmad has not been disclosed. It is next submitted that P.W.1 Rais Ahmad P.W.1 Naim Uddin, P.W.3 Mohammad Tariq have given inconsistent and contradictory evidence and they have also made improvements in their statements. Such evidence is not worthy of reliance because all these eye witnesses have given evidence after due deliberation and consultation. It is also submitted that P.W.7 Dr. Rishi Sahay has pointed out that the injuries found on the body of the deceased Useer Ahmad at the time of autopsy, do not match with such injuries stated by the eye witnesses. 21. P.W.7 Dr. Rishi Sahai, has noted fire arm injuries in his post mortem report and has also deposed in his cross-examination that these fire arm injuries were the result of a single shot of fire arm. It is further submitted that from the perusal of the whole evidence on record, it is abundantly clear that no specific role of causing injury to both the deceased has been attributed. It is also submitted that from the perusal of P.W.1 Rais Ahmad P.W.2 Naim Uddin & P.W.3 Mohammad Tariq it is manifested that they were not present on the place of the occurrence therefore, they have not seen the occurrence. 22. Learned counsel for the appellants has also contended that it was a blind murder which took place in the dark and nobody had seen the alleged occurrence but subsequently the story has been concocted and alleged eye witnesses have been arranged after deliberation and consultation and thereafter the appellants/co-accused in view of their enmity with the informant have been falsely implicated in the present case. Recovery of crime weapon i.e., country made pistols and live cartridges has been planted on the appellants Mohammad Shaqib, Mohammad Arif and Mohammad Tariq. It is also submitted that appellants/accused had not confessed the guilt nor any disclosure statement was made on their arrest to police Officer. Lastly, it is urged that they are innocent and they have strong hope of their acquittal in the instant criminal case therefore, they are entitled to be enlarged on bail. 23. On the contrary, the learned counsel as well as the learned A.G.A. opposses the bail applications of the accused/appellants and also submitted that the incident has occurred in the day light which has been witnessed. Witnesses P.W.1 to P.W.3 who have supported the F.I.R. and prosecution story. It is also contended that during investigation weapons of offences and live cartridges were also recovered from the possession of appellants Mohammad Shaqib, Mohammad Arif and Mohammad Tariq. There is cogent evidence on the record against all the appellants and the charges against all the appellants have been duly proved. It is also submitted that the impugned judgement and order is lawful and every aspect of the matter has been analysed and discussed in the judgement. The impugned judgment and order is strongly supported by the learned counsel for the informant and the learned A.G.A. on behalf of the State. 24. Learned counsel for the appellants also submitted that the criminal history of the appellants has been duly explained. Xxxx xxxx 27. From the perusal of the record, it is transpired that general role of exhortation has been assigned to all the five accused. From the F.I.R. itself, the role of causing fire arm injury to the deceased Mohammad Asif has been assigned to appellant Mohammad Tariq and role of causing fire arm injury to the deceased Useer Ahmad has been attributed to co-accused Mohammad Shaqib. 28. Co-accused/appellant, Mohammad Arif, Mohammad Asif and Babloo @ Israr Ahmad have not been assigned any role of firing at any of the deceased. 29. It has also come in the evidence on the record that deceased Useer Ahmad has sustained gun shot injury; one on the arm and the other on the abdomen but no injury on the abdomen of deceased Useer Ahmad has been indicated in his autopsy report. 30. 29. It has also come in the evidence on the record that deceased Useer Ahmad has sustained gun shot injury; one on the arm and the other on the abdomen but no injury on the abdomen of deceased Useer Ahmad has been indicated in his autopsy report. 30. This is a case of indiscriminate firing by the accused as per the allegations contained in the F.I.R. 31. P.W.7 Dr. Rishi Sahay, who has conducted the post mortem over the body of the deceased Useer Ahmad, has deposed in his cross-examination that during examination he had found five injuries on the body of the deceased; all these injuries were the result of one fire. However, he has further clarified that out of five fire arm injuries, four injuries have been fired from one gun shot whereas fifth gun shot injuries may or may not be of the same fire arm. He has further stated that there is strong possibility that all five fire arm injuries were caused by one gun shot. All five fire arm injuries could have been caused by rifle. All five fire arm injuries cannot be sustained by one gun fire shot by small fire arm. 32. P.W.5 Vimlendra Sekhar, who has conducted post mortem over the body of the deceased Mohammad Asif has deposed in his cross-examination that during examination, one metallic object was found. He is not sure whether that metallic object was bullet or not. He cannot say whether the fire arm injury was caused by rifle or any other weapon because he is not a ballistic expert. He has next stated that he cannot say from what distance, the fire had been shot at the deceased Mohammad Asif. It was the contention of the learned counsel on behalf of the appellants that the range of country made pistol is not beyond 25 steps. He has next stated that he cannot say from what distance, the fire had been shot at the deceased Mohammad Asif. It was the contention of the learned counsel on behalf of the appellants that the range of country made pistol is not beyond 25 steps. It was also the argument of the learned counsel that in view of the evidence of both the doctors, it is not certain that deceased Useer Ahmad had received the gun shot injuries from which weapon; bullet fire arm injuries were found on the body of the deceased Mohammad Asif appears to have been caused by rifle but in the ocular evidence the eye witnesses have stated in their testimonies that accused Mohammad Tariq and Mohammad Shaqib had wielded country made pistol (CMP) and Mohammad Tariq had fired from his CMPs at deceased Mohammad Asif whereas Mohammad Shaqib had fired at the deceased Useer Ahmad by CMPs. 33. Appellant Mohammad Tariq and Mohammad Shaqib are languishing in jail since about ten years and appeals are not likely to be heard in the near future. Having regard to all the facts, circumstances and considering the submissions put forth by the learned counsel for the appellants and learned A.G.A. 34. We are of the opinion that all the accused/appellants may be enlarged on bail. 35. Without expressing any opinion on the merits of the case, let the accused/appellants Mohd. Tarik, in Criminal Misc. Bail Application No.02 of 2020 in Criminal Appeal No. 5054 of 2021, Bablu @ Israr Ahmad in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.806 of 2020, Mohammad Asif, in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.792 of 2020, Mohammad Arif in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.791 of 2020, and Mohammad Shaqib in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.806 of 2020, Mohammad Asif, in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.792 of 2020, Mohammad Arif in Criminal Misc. Bail Application No.1 of 2020 in Criminal Appeal No.791 of 2020, and Mohammad Shaqib in Criminal Misc. Bail Application No. Nil of 2020 in Criminal Appeal No.2845 of 2020 , be released on bail in Case Crime No. 524 of 2011, under Sections 147, 148, 302/149 I.P.C. and Section 7 Criminal Law Amendment Act, in Case Crime No.6 of 2012, under Section 3/25 Arms Act, in Case Crime No. 7 of 2012, under Section 3/25 Arms Act, in Case Crime No.16 of 2012, under Section 3/25 Arms Act, Police Station Nawabganj, District Allahabad, on their furnishing personal bond and two sureties each in the like amount to the satisfaction of the court concerned. Xxxx 37. It is made clear that the fine imposed by the trial court in the impugned judgment and order shall remain stayed till the decision of the appeal. 38. On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on record. Order on Appeal Office to prepare paper book, if not prepared. List the appeal for hearing in the month of July, 2023.