Shoaib vs State Of Uttarakhand

Hon’ble Mr. Justice Rakesh Thapliyal, J.

All these bail applications are moved by the applicants Shoaib, Toseef Khan, Rehan, Riyasat Kha and Sajid Khan, who are facing the trial for the offences punishable under sections 103(1), 109(1), 190, 191(2), 191(3), 333, 351(2), 352, 61(2), 3(5) of BNS, 2023 r/w section 3/25/30 of Arms Act arising out of First Information Report dated 19.08.2025 bearing Case Crime No. 0263 of 2025 P.S. Kiccha, District Udham Singh Nagar.

All these bail applications are clubbed and are being decided together with the consent of learned counsel for the parties since all the applicants herein are seeking regular bail in connection with Case Crime No. 263 of 2025.

Brief facts of the case are that on 18.08.2025 at about 10:55 AM Rehan S/o Firashat, Sajid Khan S/o Litafat, Riyasat Kha S/o Litafat and Akeel Khan S/o Mohd. Jaan entered in the house of the informant Sami Khan @ Sameer S/o Akram khan and they abuses and also threatened to kill since the candidate of Hazi Sarvar Yaar Khan had lost the Gram Pradhan Election and then they all opened fire due to which the informant’s brother ‘Aalim’ (aged about 22 years) sustained a gunshot injury on his chest and died at the spot.

The entire sequence of the incident wherein the deceased “Aalim” was killed was actively being recorded by his sister “Mrs. Meena” W/o of “Junaid Khan” from roof top of her residential house located only at a distance of about 200 meter from the place of incident and upon noticing her capturing entire crime scene an aggressive mob of some persons rushed towards her residence and opened gunfire with the intent to eliminate her, but she escaped unhurt then members of the mob trespassed into her house, snatched her mobile phone containing the video of first incident and looted cash also. Regarding this incident a separate First Information Report bearing FIR No. 264 of 2025 was lodged by the witness of first incident Mrs. Meena under sections 109(1), 115(2), 311 and 321(2) of BNS, 2023. This subsequent FIR was registered specifically by giving reference of first incident establishing that the assault, house trespass and robbery were committed solely to suppress evidence and retaliate against the incident for recording the incident of murder of her brother.

Now, on completion of the investigation of FIR No. 263 of 2025 charge-sheet no. 256 of 2025 was submitted on 19.11.2025 wherein in total six persons namely (i) Akeel Khan S/o Mohd. Jaan Khan, (ii) Rehan Khan S/o Firashat Khan, (iii) Sajid Khan S/o Litafat Khan, (iv) Shoaib S/o Fariyad Khan, (v) Riyasat Kha S/o Litafat Khan and (vi) Toseef Khan have been chargesheeted and all these accused persons except Akeel Khan, who is already granted bail by the Coordinate Bench now moved these bail applications for seeking regular bail in connection with Case Crime No. 263 of 2025. Now all these bail applications are being discussed as follows:

Mr. D.K. Sharma, learned senior counsel with Mr. Lalit Sharma argued that the present applicant is innocent and has been falsely implicated and the main role of hatching conspiracy to commit the crime was attributed to “Mr. Hazi Sarvar Yaar Khan” in the present FIR i.e. FIR No. 263 of 2025 but during investigation he has been exonerated though there is a specific allegation against him since the FIR alleges “gkth ljoj ;kj [kku us vius leFkZdksa ds lkFk feydj ‘kM+;a= jpk”. They submits that entire prosecution story is based upon false and concocted story, which is evident from the fact that another co-accused Toseef Khan though is not named in the FIR No. 263 of 2025 and even both the eye witnesses of the incident namely Shami and Ikram Khan did not disclose his name even then he has been chargesheeted.

Mr. D.K. Sharma further submits that all other witnesses are interested witnesses except one Mr. Chand Miya, who is an independent witness and has not corroborated the version of the complainant or any of the alleged eye witnesses. He further argued that charge-sheet has been filed in a hurried manner without ballistic report and even otherwise no specific role is assigned to the present applicant and furthermore one of the co-accused Akeel Khan is already enlarged on bail by the Coordinate Bench on 08.05.2026 in Bail Application No. 392 of 2026 and, as such, the present applicant Shoaib Khan deserves for the benefit of parity since identical role is assigned to him.

He further submits that the incident of both the FIRs i.e. FIR No. 263 of 2025 and 264 of 2025 are in fact is in respect of the same incident since the date and time of the incident is same i.e. 18.08.2025 at 10:55 hours lodged in the same police station but were investigated by different I.O.s who in turn filed two separate charge-sheets and now two Session Trials are going on, however, the trial court proceeding arising out of FIR No. 264 of 2025 is stayed by the Coordinate Bench on 08.04.2026 in C528 No. 617 of 2026. Apart from this, he submits that the present applicant “Shoaib” is languishing in jail since 30.08.2025 and suffered incarceration of more than 11 months, therefore, he may be released on bail .

Mr. Sanjay Bhatt, learned counsel for the present applicant “Toseef Khan” submits that the present applicant is innocent and has been falsely implicated and is languishing in jail since 23.08.2025 and the persons, who are implicated in both the FIRs i.e. FIR No. 263 of 2025 and 264 of 2025 are different, therefore, the very basis of prosecution is false and does not inspire confidence. He submits that none of the accused persons in both the FIRs are common though both the FIRs raised an allegation with regard to murder of one Aalim, therefore, the prosecution story is full of doubts from its very inception. He submits that the main role of hatching conspiracy is attributed to one Mr. Hazi Sarvar Yaar Khan but surprisingly he has been exonerated and further there is no factum of motive attributed to the present applicant to commit the alleged crime.

Mr. Bhatt further submits that the present applicant Toseef Khan was not named in the FIR No. 263 of 2025 and even the two eye witnesses namely Shami and Ikram Khan did not disclose his name and it was only after 09.11.2025 the informant to the FIR disclosed the name of the present applicant, which is nothing but an afterthought. He submits that all other witnesses are interested witnesses except one Chand Miya, who has not corroborated the version of the informant as well as alleged eye witnesses of the incident.

He also submits that in absence of ballistic report the charge-sheet has been filed without ascertaining whether the weapon as shown to be recovered on his pointing out was used in the commission of the crime and, as such, the entire prosecution story is full of doubts and the investigation is also faulty and there are chances of acquittal of the applicant. He further submits that one of the co-accused has been granted bail by the Coordinate Bench and, as such, since the applicant have been assigned the same role as assigned to the co-accused, who has been granted bail, therefore, the present applicant entitle the benefit of parity.

He further submits that in reference to the incident of FIR No. 264 of 2025 14 persons were named but the charge-sheet is submitted only against four persons and Trial Court proceeding arising out of this FIR No. 264 of 2025 is already stayed by the Coordinate Bench.

Apart from this, Mr. Bhatt also pointed out that the informant Mr. Shami Khan @ Sameer S/o Akram Khan and his associate namely Ms. Nazia and her husband Gaffar Khan have a long criminal history and they all are indulged in supply of illegal arms and weapons.

Mr. D.K. Sharma, learned senior counsel and Mr. Lalit Sharma submits that the present applicant Riyasat Kha is innocent and has been falsely implicated and reiterate the same argument, which they advanced in reference to the co-accused Shoaib, who is seeking bail in Bail Application No. 417 of 2026, however, only this much argument they further advanced that the present applicant “Riyasat” having valid licence to possess rifle, however, in absence of ballistic report he has been charge-sheeted, therefore, it cannot be said that the incident was caused by the rifle of the present applicant.

They further submit that the present applicant is languishing in jail since 15.09.2025 and as the chargesheet is already filed and as such no further custodial interrogation of the present applicant is required and since of the co-accused is already enlarged on bail, therefore, he may also be released on bail.

In the instant bail application Mr. Sanjay Bhatt, learned counsel, argued that the present applicant “Rehan” is languishing in jail since 24.08.2025 and is a young boy of 30 years and no specific role has been assigned to him and the co-accused Akeel Khan is already enlarged on bail by the Coordinate Bench and in fact the dispute is nothing but due to political rivalry between two different political ideologies.

He further submits that the informant to the FIR No. 263 of 2025 have a criminal antecedent and is languising in Bareilly Jail in connection with FIR No. 122 of 2026 P.S. Bahedi District Bareily, wherein, he is involved in supply of illegal fire arms and he has also a long criminal history. Rest of the arguments he has reiterated, which he advanced in Bail Application No. 323 of 2026 Toseef Khan vs. State of Uttarakhand.

The present applicant Sajid Khan is also praying for bail in reference to FIR No. 263 of 2025 on whose behalf Mr. Sanjay Bhatt argued that the present applicant Sajid Khan is the father of co-accused “Toseef Khan” and is innocent and has been falsely implicated and he has no criminal antecedents.

He further submits that the present applicant is not named in the FIR though during investigation involvement of the present applicant came into light as the weapon was recovered on his pointing out though he was not present at the time of alleged incident.

He further submits that the entire prosecution story is based on false pretext and there is no evidence with regard to any intention and motive of the applicant and is implicated only due to political rivalry and rest of the argument he has reiterated which he has advanced in respect of the other co-accused “Toseef Khan”.

Per contra, learned counsel for the informant Mr. Pooran Singh Rawat and Mr. M.C. Upadhyaya vehemently opposed the application of all the accused persons and submits that all the persons who are chargesheeted committed the offence in furtherance to their common intention and motive with common object. He also submits that the arms and weapon used in the crime were also recovered on their pointing out and as per the CCTV footages and their mobile location they were present at the place of occurrence. In reference to the accused “Shoaib”, the applicant of Bail Application No. 417 of 2026 he submits that this applicant is the main accused, who himself admits that he fired gunshot at the deceased after taking “Tamancha” from the co-accused Sajid Khan and the entire incident was captured in the CCTV footages which clearly establishes his involvement. He also submits that the weapon used in the commission of crime was also recovered and the mobile location of the present applicant was found at the place of occurrence at the time of the incident. He further submits that eye witnesses of the incident namely Sajid Khan, Junaid, Akram, Ikram, Shami and cousin sister Meena have supported the case of the prosecution. He also submits that the applicant Shoaib have criminal antecedent in connection with FIR No. 227 of 2023.

In reference to the co-accused “Toseef Khan”, the applicant of Bail Application No. 323 of 2025 he submits that this applicant though was not named in the FIR but he was seen in the CCTV footages proceeding towards the complainant’s house while carrying rifle and as per the statement of the eye witness his active role was found in commission of the crime. He also submits that his mobile location was also found at the place of occurrence and rifle with two empty 315 bore cartridges were also recovered from his possession.

In reference to the accused Rehan, the applicant of Bail Application No. 816 of 2026 he submits that mobile location of this applicant was found at the place of occurrence at the time of incident and 315 bore tamancha and one live cartridge was also recovered from his possession. He further submits that as per the statement of witnesses namely Junaid, Rehan and Sajid the present applicant Rehan take active role in causing fire from his tamancha and he has criminal antecedent also.

In reference to accused-applicant Riyasat Kha, the applicant of Bail Application No. 2547 of 2025 Mr. Pooran Singh Rawat submits this applicant is also named in the FIR and was seen in the CCTV footages proceeding towards complainant’s house while carrying a fire arm and his mobile location was also found at the place of occurrence and 315 bore rifle was also recovered from his possession and as per the statement of eye witness the present applicant is also one of the main accused and the issue of political rivalry is only developed to seek the bail.

In reference to the co-accused Sajid Khan, the applicant of Bail Application No. 354 of 2026 Mr. Rawat argued that this applicant also named in the FIR and was seen in the CCTV footages proceeding towards the complainant’s house carrying tamancha and he was also seen in the CCTV footages while firing towards the complainant’s house and his mobile location was also found at the place of occurrence and 315 bore tamancha was also recovered and he is also having criminal antecedent.

On the other side, Mr. Tumul Nainwal, learned A.G.A. for the State submits that firstly the incident relating to FIR No. 263 of 2025 and FIR No. 264 of 2025 are relating to two distinct incidents occurring at two separate locations and are at the distance of 60 to 70 meter and the investigation reveals that both the incidents was caused due the rivalry in reference to Gram Panchayat Election of 2025 of Village Darau. He submits that since both the FIRs relates to two distinct offences though on the same date two different incidents were happened. In the first incident a man was killed in his house and in the second incident an attempt was made to kill the sister of deceased of first incident by house trespass causing theft also and that is the reason that both the incidents was investigated separately by two different I.O.s. He also pointed out that there are two more FIRs i.e. FIR No. 268 of 2025 and FIR No. 270 of 2025 which relates to a police encounter dated 24.08.2025 in which two co-accused persons “Sajid Khan” and “Gulnawaz” were apprehended and this separate incident are being investigated by another I.O. of P.S. Pulbhatta.

Mr. Nainwal argued that all these applicants have been chargesheeted with the charge of killing one Aalim, a 22 years boy, the brother of informant in an well organized and planned manner, who died at the spot due to gunshot injury at his chest and the post-mortem also confirmed cause of death as shock due to ante-mortem fire arm injury, which is also corroborated by Dr. Yadhuraj Bhatt, who conducted the post-mortem.

Learned A.G.A. Mr. Tumul Nainwal further submits that on completion of investigation the charge-sheet is filed on 19.11.2025 against six persons, who are applicants herein, and one Akeel Khan, who have also actively involved in the commission of crime and also named in the FIR and was one of the member of four armed assailants who entered into the informant’s house and opened fire and after causing incident he also absconded from the place of incident, subsequently, he was also declared a proclaimed offender then he was arrested on 23.08.2025 along with co-accused Rehan Khan from Sharma Dhaba located at Pulbhatta road District Bareilly and one pistol (tamancha) 315 bore with one live cartridge was also recovered from his personal possession at the time of arrest, consequently, section 3/25 of Arms Act was also added against him. In reference to this accused, learned A.G.A. submits that this accused is enlarged on bail by the Coordinate Bench.

Learned A.G.A. makes following submission in reference to each of the accused:

In reference to one of the person, who according to the learned counsel for the applicants is the main accused namely Hazi Sarvar yaar Khan S/o Sarvar Yaar Khan Mr. Nainwal submits that originally this person was named in the FIR as a conspirator but during investigation no material was found concocting him to any conspiracy and the allegation against him were also not corroborated and he was exonerated and has not been chargesheeted.

At this juncture, Mr. Nainwal also make submissions in reference to the incident of FIR No. 264 of 2025 and submits that in this FIR 14 persons were named along with 10 unknown persons and per this FIR Smt. Meena, the informant, the cousin sister of the deceased “Aalim” was recording a video of entire incident of murder from the roof top of her own house situated approximately 60 to 70 meters from the place of incident of the first incident and on being noticing the accused persons opened fire at her with an intent to kill but she anyhow escape unhurt and after this some of the accused persons entered into her house, snatched her mobile and looted cash of Rs. 7,000/-. He further submits that in reference to the incident of FIR No. 264 of 2025 the charge-sheet has been filed, however proceeding has been stayed in C528 petition No. 617 of 2026 by the Coordinate Bench.

Apart from this, he submits that in reference to the present FIR No. 263 of 2025 the CDR report of the accused persons were also analyzed and as per the CDR location of all accused persons, who have been chargesheeted are also confirmed at the place of occurrence. In addition to this, Mr. Nainwal also apprised about antecedents of all the applicants, which are as follows:

At this juncture, Mr. Nainwal also give the details of the criminal antecedent of the informant of FIR No. 263 of 2025 and submits that this informant have a long criminal history in district Nainital, Udham Singh Nagar and Bareilly of State of U.P. and at present this person is in judicial custody in relation to Case Crime No. 122 of 2026 though he is one of the prosecution witness in FIR No. 263 of 2025.

Learned A.G.A. by giving the aforesaid details finally concluded his argument by submitting that after collecting all material evidences including CCTV footages, mobile video recording of the informant and the statement of independent eye witness, recovery of Fire arms including licensed weapon recovered from one of the applicant’s own house and on the basis of their confessional statement there are the evidences of common object and intention resulting into the murder of Aalim (deceased). He submits that taking into consideration the gravity of the offences and the specific role attributed to each of the applicants and the recovery of the licensed weapon after the incident and the fact that there are all possibility that if the applicants have been enlarged on bail, they may either influence the witnesses or tamper with the evidences and there are possibility that they may flee from justice, therefore, all these applicants does not deserve for bail.

After hearing the rival submissions of learned counsel for all the parties including learned counsel for the complainant and after perusing the entire record including the objection of the State as well as complainant and the fact that on a single day two incidents were happened in two houses located in the same area by group of people what this court has observed that the entire incident was caused by a mob of persons is nothing but in a well planned and organized manner crime was committed for brutal murder of the deceased ‘Aalim’ the brother of the informant of FIR No. 264 of 2025. The record reveals that the entire incident of Case Crime No. 263 of 2025, wherein, all the applicants have been chargesheeted was visually captured on a mobile phone by the sister of deceased Mrs. Meena from the roof top of her house and the material on record indicates that upon realizing their heinious act was being recorded an aggressive mob consisting of more than 14 persons, who are named in the subsequent FIR No. 264 of 2025 rushed to the residence of the informant Meena, the informant of FIR No. 264 of 2025 and the said mob opened direct gunfire upon her from which she narrowly escaped unhurt. Following this, the assailants forcibly trespassed into her dwelling house, violently snatched mobile device containing the critical video evidence of the incident of FIR No. 263 of 2025 and by looted cash also clearly reveals the gravity of the offence. The incident of FIR No. 264 of 2025 though independently registered under section 109(1), 115(2), 311 and 321(2) of BNS, 2023, with explicit refer to the first incident and the accused Toseef, who is the applicant herein, and is also an accused in FIR No. 263 of 2025 is also common to both the incidents establishing of his nexus with both the offences, the first one relates to murder and the second relates to violent assault on the eye wetness of the first incident since the informant of FIR No. 264 of 2025, who was recording the incident of the first incident. The first incident clearly establishes that all the assailants came with common object and intention to commit the crime and the subsequent event arising out of Case Crime No. 264 of 2025 itself demonstrate a calculated cold blooded attempt to systematically terrorize eye witness, destroy vital electronic evidence and causing threat to the witness, disentitle each of them to be enlarged on bail.

At this juncture, it is also relevant to mention here that in FIR No. 263 of 2025 no doubt “Toseef” was not named, who is the son of the co-accused “Sajid Khan”, but the investigation reveals that in the subsequent incident arising out of Case Crime No. 264 of 2025 he was named and thereafter his involvement was found in the present case also which is also corroborated by an independent eye witness Ashraf S/o Alam Khan, who specifically stated that the bullet fired by the accused Toseef struck the deceased and on his pointing out the rifle with two empty cartridges and a cartridge belt was also recovered, which was registered in the name of his father, the co-accused Sajid Khan and the same was recovered from a cattle shed at his aunt’s house.

So far as co-accused Sajid Khan is concerned the father of co-accused Toseef he is already named in the FIR and CCTV footages shows that he was firing from tamancha in the direction of the informant’s house and his licenced rifle was used by his son the co-accused Toseef.

So far as the co-accused “Rehan Khan” is concerned, admittedly he is named in the FIR and was the member of four assailants and after the incident he was absconded and then arrested after 3-4 days on 23.08.2025 along with the co-accused Akeel Khan from District Bareilly and one live cartridge of 315 bore was also recovered from his possession and the CCTV footages reveals that this applicant along with other assailants were armed with sticks and rods moving towards and pelting stones at the informant’s house at the time of occurrence, therefore, this applicant is also actively involved in the commission of crime.

So far the applicant “Shoaib” is concerned he is also named in the FIR though he has surrendered and as per the record he was firing towards the deceased with a tamancha taken from the co-accused Sajid Khan.

So far as the applicant “Riyasat Kha” is concerned, he is also named and surrendered and the CCTV footages of the incident shows that he was armed with a gun moving towards the informant’s house at the time of occurrence and his licence rifle was also recovered from his own house. Consequently, section 30 of Arms Act was also added against him and it cannot be ruled out that he was not involved in the incident.

At this juncture, while considering bail application the role of each of the applicants cannot be analyzed independently, which completely the subject matter of the trial but prima-facie the record reveals that they all in a well planned and organized manner with common object and intention commit the offence, which appears to be serious and it became more serious after second incident.

The accused Toseef is admittedly chargesheeted in both the offences i.e. Case Crime No. 263 of 2025 as well as in Case Crime No. 264 of 2025 and as per the prosecution case in the second incident 14 persons were named in the FIR, however, as apprised only four of them have been chargesheeted and so far as FIR No. 263 of 2025 is concerned, in total 6 persons have been chargesheeted and one person namely Hazi Sarvar Yaar Khan was exonerated and furthermore there is no major time difference in between both the incidents but the manner in which both the incidents were caused are more serious.

Thus, this court is of the view that the second incident arising out of Case Crime No. 264 of 2025 disentitle the applicants to get bail since the second incident was caused to terrorize the witnesses and to destroy the electronic evidence of the first incident, therefore, at this juncture if the applicants are enlarged on bail then there are all possibilities that they can terrorize the witnesses or to tamper with the evidence and therefore there are all possibilities that they all may frustrate the Trial Court proceedings.

Finally, what this court has observed that both the incidents demonstrate a calculated, cold blooded attempt by the accused persons and while considering the bail applications of each of the accused gravity of the primary offence that too with regard to brutal murder of deceased “Aalim”, this court cannot overlooked that the subsequent incident is nothing but an attempt to destroy the electronic evidence and to eliminate the eye witness, therefore, this court review that if at this stage the applicants are enlarged on bail certainly it will affect the ongoing trial.

Accordingly, without expressing any opinion on the merit of the case, all the bail applications are hereby rejected.

It is made clear that the trial Court may proceed and conclude the trial on it’s own merit without being influenced with the observation as above.

The copy of this order be kept in the record of each of the bail applications.