Firoz vs State of U.P.

Vijay Kumar Verma, J.—A.G.A. has filed counter-affidavit, which is taken on record.

Heard Sri A. P. Misra, advocate appearing for the applicant and A.G.A. for the State.

The allegations made in the F.I.R. lodged on 28.8.2008 by Aslam at P.S. Baraut, district Baghpat at Case Crime No. 812 of 2008, in brief, are that on catching hold the deceased Pappan by accused Firoz (applicant herein), the accused Sohail alias Raja poured acid on her in the intervening night of 26/27.8.2008, due to which she sustained injuries and died on 15.9.2008 in the hospital. One child Rahil (nephew of deceased) is also said to have sustained acid injuries.

The first and foremost submission made by the learned Counsel is that story of catching hold the deceased and then pouring acid on her is false and concocted, because there was no need for catching hold the deceased and acid could be poured on her without catching hold her and with a view to falsely implicate the applicant, the story of catching hold the deceased by the applicant has been concocted.

Next submission made by learned Counsel is that there was no motive at all for the applicant to take part in the incident and motive was only to co-accused Sohail alias Raja, as he wanted to have illicit affairs with the deceased, whose husband had died and since the deceased was not ready to have illicit affairs with her dewar Sohail alias Raja (co-accused) hence he might have poured acid on the deceased.

It is also submitted that the applicant did not sustain any injury at the time of pouring acid on the deceased, although one child is said to have sustained injuries and hence on this ground also, the complicity of the applicant in the alleged incident becomes doubtful.

Further, submission made by learned Counsel is that the applicant is languishing in jail since 12.9.2008 and hence on the basis of long incarceration in jail, he is entitled to be released on bail.

The bail application has been opposed by learned A.G.A. contending that the applicant also had taken part in the incident by catching hold the deceased and hence in this heinous crime of committing the murder of an innocent lady without any lawful excuse, the applicant should not be released on bail.

It is also submitted by learned A.G.A. that statement (Annexure-6) of the deceased Pappan recorded u/s 161, Cr. P.C. may be treated now as her dying declaration after her death, on the basis of which, the complicity of the applicant in the alleged incident is fully established.

I have given my thoughtful consideration to the aforesaid submissions made by learned Counsel for the applicant and also perused the entire material on record.

Statement of the deceased Smt. Pappan was recorded u/s 161, Cr. P.C. when she was alive. Copy of the statement is Annexure-6. Role of catching hold has been assigned to the applicant Firoz in that statement. Injured witness Rahil also has supported the case of prosecution and he also has stated that on catching hold his buwa Pappan by Firoz, Sohail alias Raja poured kerosene on her face. The post-mortem report Annexure-11 shows that ante-mortem injuries, which may be caused by acid, were found on the person of the deceased at the time of post-mortem examination. Therefore, having regard to all these facts and keeping in view the active participation of the applicant in the incident in which acid was poured on the deceased, as a result whereof she died, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicants cannot be released on bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII (2008) ACC 115: 2008 (3) ACR 3216 (SC),in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail application is hereby rejected.

The trial court is directed to conclude the trial of the applicant within a period of six months applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments.

S.S.P., Baghpat also is directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the Court concerned and it must be ensured that all the witnesses in session trial arising out of Case Crime No. 812 of 2008 of P.S. Baraut (Baghpat) are produced in Court without causing any delay.

The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P., Baghpat for necessary action.