Farid vs State of U.P.

Ravindra Singh, J.—Heard Sri. Javed Habib, learned Counsel for the applicant, learned A.G.A. for the State of U.P. and perused the record.

This bail application has been moved by the applicant Farid with a prayer that he may be released on bail in Case Crime No. 378 of 2007 under Sections 364, 302 and 201, I.P.C., P.S. Sahawar, district Etah.

The facts, in brief, of this case are that the F.I.R. of this case has been lodged by Khalil on 3.9.2007 at 6.05 p.m. in respect of the incident which had occurred on 2.9.2007 at about 5-6 p.m. The F.I.R. was lodged u/s 364, I.P.C. against the applicant and co-accused Mujib, co-accused Naushad and co-accused Rahees alleging therein that deceased Sakib aged about 5 years was playing alongwith the children of the mohalla, when he did not come back upto 5 or 6 p.m., on search, the first informant was apprised that applicant and co-accused Mujib, co-accused Naushad and others were bringing the deceased towards Soron bus stand, thereafter father of the applicant was contacted by the first informant who stated that the deceased would come back upto morning, thereafter, the deceased did not return and was not handed over by the applicant and other co-accused persons then the F.I.R. was lodged by the first informant. The applicant was apprehended by the police, at his pointing out on the next day of the alleged incident, i.e., on 3.9.2007 the dead body of the deceased was recovered from a sugar cane field and a piece of kankad which was used in causing the injury has also been recovered at the pointing out of the applicant, thereafter Sections 302 and 201, I.P.C. were also added. According to the post mortem examination report the deceased has sustained seven lacerated wounds on the head, the cause of death was as a result of head injury. Two anal smear prepared sent for pathology to see the presence of spermatozoa.

It is contended by learned Counsel for the applicant that the F.I.R. of this case is too much delayed whereas the distance of the police station concerned was of two Furlongs. The prosecution story is not reliable at all because it is alleged that the deceased was seen in the company of the applicant and other co-accused persons by witness Maula, the brother-in-law of the first informant and witness Shakeel, the brother of the first informant, even then they did not make any effort to rescue the life of the deceased who was a child aged about 5 years and there was no reason of his accompanying with the applicant and other co-accused persons, thereafter the F.I.R. was lodged u/s 364, I.P.C. against the applicant and other co-accused persons to show that the F.I.R. was lodged before the recovery of the dead body in fact it was lodged after the recovery of the dead body, the alleged recovery is not supported by any independent witness. Recovery memo was prepared on 3.9.2007 at 10.15 p.m., the F.I.R. is ante-timed. The proceedings of the inquest were initiated on 3.9.2007 at 11.30 p.m., the same were completed on 4.9.2007 at 7.30 a.m. The prosecution story is false, concocted and highly improbable, the naming of the applicant is afterthought, there is no motive or intention to commit the alleged offence. The co-accused Mujib who is named in the F.I.R. has been released on bail by the another Bench of this Court on 30.7.2008 in Crl. Misc. Bail Application No. 513 of 2008 and co-accused Rahees has been released on bail by this Court on 18.1.2008 in Crl. Misc. Bail Application No. 2374 of 2008, therefore, the applicant may also be released on bail. The applicant is not having any criminal antecedent. He is in jail since 3.9.2007.

In reply of the above contention, it is submitted by learned A.G.A. that it is a case of kidnapping, in such cases generally the F.I.R. is not lodged promptly so that the life of the kidnappee may not be put in danger. In the present case, the F.I.R. is not undue delayed. On search it was informed by the witnesses Maula and Shakeel that the deceased was seen in the company of the applicant and other co-accused when they were going towards Soron bus stand. The family members of the deceased searched in the night and inquired from the house of the applicant, an assurance was given by the father of the applicant that the kidnapped boy shall be returned upto morning of 3.9.2007, thereafter the F.I.R. of this case has been lodged at 6.05 p.m., after lodging the F.I.R., the applicant was apprehended by the police, at his pointing out the dead body of the deceased was recovered from a sugar cane field, a piece of kankad which was used in the commissions of the alleged offence has also been recovered at the pointing out of the applicant. The recovery was supported by the witnesses. Some minor discrepancy in inquest report as alleged by counsel for the applicant does not belie the prosecution story. The case of the applicant has been distinguishable with the case of the co-accused Mujib, Rahees and other co-accused in the orders dated 30.7.2008 and 18.1.2008. The case of the applicant is not on the same footing with the case of the above mentioned co-accused. The benefit of the parity may not be given to the applicant. The applicant is not entitled for bail so the bail application may be rejected.

Considering the submissions made by learned Counsel for the applicant, learned A.G.A. and from the perusal of the record it appears that it is a case in which five years old child was kidnapped, thereafter he was murdered, the applicant is named in the F.I.R., it was lodged u/s 364, I.P.C. on 3.9.2007, on the same day applicant was allegedly arrested by the police and at his pointing out the dead body of the deceased was recovered from a sugar cane field, on his pointing out a piece of kankad used in commission of murder of the deceased has also been recovered. The case of the applicant is distinguishable with the case of other co-accused persons because at their pointing out the dead body of the deceased was not recovered. The gravity of the offence is too much. The applicant is not entitled for bail, the prayer for bail is refused.

Accordingly this application is rejected.