Azahar vs State of U.P.

Karuna Nand Bajpayee, J.—Supplementary affidavit filed today is taken on record. Heard learned Counsel for the applicant and learned A.G.A. as well as Sri Vijay Shantam, Counsel for the first informant.

Perused the record.

Submission of Counsel for the applicant is that the deceased of the case in question was an old patient of diabetes and actually died as a result of long history of the same. Counsel for the applicant has drawn the attention of the Court to the death certificate of the deceased in which cause of death was described as Cardiopulmonary arrest, type II Diabetes mellitus and fracture in neck of femur. Much emphasis was laid by Counsel for the applicant on the fact that neither the witnesses during the course of their statements given before the Investigating Officer have attributed any weapon to the applicant nor in the F.I.R., which was lodged by the deceased himself, any weapon of offence was attributed to the applicant and it is an admitted case of the prosecution that during the marpeet with the deceased which had taken place, the applicant never used any weapon. It was further submitted that initially only an N.C.R. was lodged with regard to the incident. Counsel for the applicant has also drawn the attention of the Court to the post-mortem report which does not indicate any serious injury on vital part of the body of the deceased and the fracture injury received is on the hip. Apart from this injury, only one contusion was received by the deceased. It was submitted that actually because of the long history of the ailment of the deceased, his body had become debilitated too much and it is only a matter of misfortune that as a result of the marpeet in which the deceased had received only two injuries which too were not caused by any arm or blunt weapon, his condition deteriorated and because of the medical complications after struggling for 18 days in the hospital he died.

Counsel has also drawn the attention of the Court to the several papers regarding his medical treatment which have been annexed along with supplementary affidavit as Annexure-SA-1 and has tried to substantiate the submission about the unhealthy condition of the deceased from before the incident. Contention is that actually in the facts and circumstances of the case, no intention to cause death of the deceased can be attributed to the applicant and the death of the deceased is more because of the unfortunate deterioration of his health condition and not because of any such injuries caused to him by anybody, which in the ordinary course could have been sufficient to cause his death. 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 co-operate with the process of law and shall faithfully make himself available before the Court whenever required. It has also been pointed out that the accused is not having any criminal history and he is in jail since 9.3.2015 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. as well as Counsel for the first informant 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, 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.

Let the applicant-Azahar involved in Case Crime No. 99 of 2015, under section 304 I.P.C., Police Station Quarsi, District Aligarh, 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.

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.

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.