Niyamat Ulla vs State Of U.P.

Heard Sri Ashok Nath Tripathi, learned counsel for the applicant, Sri Kameshwar Singh, learned counsel for the informant and Sri Rishi Chaddha, learned A.G.A. for State and perused the record.

This application under Section 439 Cr.P.C. has been moved seeking bail in Case Crime No. 255 of 2019 under Sections 147, 148, 149, 302 I.P.C., Police Station Maudaha, District Hamirpur, during the pendency of trial.

As per F.I.R. lodged by Ramjan Ali @ Ramjani, on 19.7.20019 at about 2:15 PM, when the informant was at home, his son Jahid Ali @ Bhai (deceased) and Nahid Ali had gone to Maudaha on motor-cycle number of which is mentioned in the F.I.R. and as soon as they reached near the well ahead of village Silauli, Md. Fajil (co-accused) met them and he was directed to stop the vehicle. Right then accused-applicant and co-accused Ali Ahmad @ Bachcha and two other unknown persons, who had their faces covered, came there armed with Ganasa and Farsa and started abusing him with common intention to kill and assaulted him. Because of the fear, Nahid Ali who was accompanying the deceased, fled from there. Deceased died on the spot. After receiving information of the occurrence, informant went to the place of occurrence. He had gone to the police station after information was given by Nahid Ali. In post-mortem report, cause of death has not been recorded, the same has been left blank and deceased has received one crushed injury ( crushed scull bones, all are fractured and brain material protruded out).

Submission made by the learned counsel for the applicant is that co-accused Ali Mohammad alias Bachcha and Mohd. Fazil have also been granted bail by the co-ordinate Benches of this Court vide orders dated 28.9.2020 and 20.10.2020 in Crl. Misc. Bail Application Nos. 25636 of 2020 and 28480 of 2020, therefore it is prayed that on parity, applicant should also be allowed bail. He is in jail since 4.11.2020. If released on bail, he will not misuse the liberty of bail.

Learned counsel for the informant has vehemently opposed the prayer of bail and it is argued that Nahid Ali, who was accompanying the deceased, whose statement is annexed at page 44 to 45 of the counter affidavit, has stated that Md. Fazil has stopped the deceased and he caught the neck of the deceased and thereafter applicant came out of the bushes and exhorted that he should not be left alive, having iron rod in his hand. Thereafter three more persons also came which included his brother Bachcha and two others. He immediately fled from the vehicle and concealed himself in a bush and from there he saw that Fazil had Farsa and accused-applicant had iron rod by which he hit at the head of the deceased and co-accused Bachcha had assaulted his brother by Banka at his forehead. Fazil had also assaulted by Farsa and other two persons who were having their faces covered were saying that he should not be left alive. Having shown such piece of evidence, it is argued that this is eye-witness account and it is clear case of murder in which role of applicant is there. Next he has argued that applicant has long criminal history of 22 cases, list of which has been given by him. Next he has argued that accused was absconding for long and proceeding under Section 82 Cr.P.C. has been initiated against him which is evident from the letter of Ramendra Tiwari (I.O).) addressed to C.J.M. seeking warrant to be issued under Section 82 Cr.P.C. After warrant of Section 82 Cr.P.C. was executed, proof of which is annexed at page 23, prayer was made by him for issuing warrant under Section 83 Cr.P.C. but the same was not granted because of the Covid-19 pandemic which is evident from the page 25 of the counter affidavit. Next he has argued that Jahid, who is deceased, had lodged an F.I.R. against brother of the applicant and three others being crime no. 427 of 2016, under Section 307, 363, 323, 504, 506 IPC which is annexed at page 29 to 31 of the counter affidavit. Deceased barely could survive the said attack and subsequently he has been eliminated in the present assault. Applicant is hardened criminal. Then he has drawn attention to page 33 and 34 of the counter affidavit which relates to the conclusion of I.O. that this was a case of murder and not that of accidental death by looking at the condition of the motor-cycle which was being used by the deceased and it did not appear to have collided with any Scorpio vehicle. CDR details also indicated that accused was near the place of occurrence at the time when occurrence had happened. He has drawn attention to the CD Parcha No. 45 dated 4.9.2019 which shows that charge sheet was submitted by the investigating officer finding that there was earlier old enmity between the two sides and there was enough motive for elimination of the deceased by the accused persons. Having drawn these pieces of evidence, it is argued that bail application of the applicant should be rejected.

I have gone through the earlier orders of bail granted to the other co-accused which too indicate that information was received by RT-set regarding some accident that had taken place and entry thereof in GD entry no. 58 dated 19.7.2019 at 5:14 was also recorded and while granting bail to the Ali Mohammad alias Bachcha, detailed order has been passed and bail has been allowed on the ground that injury which was found to have been sustained by the deceased, did not appear to be that of the weapon which is stated to have been used by the said accused and in the case of the present accused-applicant, iron rod is stated to have been used by the accused-applicant in assaulting the deceased but the deceased has suffered one crushed injury which cannot be caused by the said iron rod, therefore, the said eye witness does not appears to be eye-witness of this case, as regards criminal history, all the criminal cases have been explained by the accused-applicant, in all, either the accused has been allowed bail or has been acquitted, taking into consideration the quantum of punishment, nature of offence, there are no chances of accused fleeing from justice and period of detention, without expressing any opinion on the merits, this case is found to be a fit case for bail.

Learned AGA has opposed the prayer of bail, but has not controverted the aforesaid fact.

Let the applicant Niyamat Ulla involved in aforesaid crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions that:-

The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.

The applicant shall cooperate in the trial sincerely without seeking any adjournment.

The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.