Nishant vs State of U.P.

Vinod Prasad, J.—Counter-affidavit filed by Sri V. M. Zaidi, learned Counsel for the informant Respondent today in Court is taken on record. Learned Counsel for the applicant does not propose to file any rejoinder-affidavit thereto.

Heard Sri J. S. Sengar, learned Counsel for the applicant in support of this bail application, Sri V. M. Zaidi, learned Counsel for the informant and the learned A.G.A. in opposition.

The applicant seeks bail in crime number 383 of 2005 under Sections 147, 148, 149, 504, 307 and 302, I.P.C., police station Titawi district Muzzaffar Nagar.

In short the prosecution allegations against the applicant as is mentioned in the F.I.R. (Annexure-1) are that on 20.10.2005 election of Panchayat was being held. At 12 noon that day Zulkar Nain, brother of the informant Badar Alam was sitting in the gher of Mohd. Musa after casting his vote alongwith Mohd. Musa, aforesaid, his sons Mohd. Wasi and Azat Hussain and co villagers Mohd. Afaq, Mohd. Shoeb, Abdul Kavi, and Mohd. Ali. At that time the accused persons Shoeb armed with rifle, Abdul Rahman alias Bittu armed with gun, Ammer, Dawood, Soban, Maroof, and the present applicant Nishnat all armed with country-made pistols approached there from the southern side making indiscriminate firing as a result of which Smt. Mahjbeen who was standing on her roof in the way sustained gun shot injuries and died and her daughter Km. Ayesha sustained injuries. All the accused entered into the gher of Mohd. Musa shouting that they will finish the politics of Zulkar Nain aforesaid and started firing at him. Mohd. Wasi, Afaq Hussain and Mohd. Ali tried to stop them but they were also fired at. Haji Zular Nain died on the spot. Hearing the shooting many villagers collected on the spot and tried to surround the culprits on which Amir Ahmad, co accused fired towards the villagers but he was surrounded and was done to death by assault by lathi and dandas. This incident was witnessed by Abad Hasan, Mohd. Shoeb, Mohd. Musa, and Abdul. The motive for the murder was alleged to be the election enmity. It occurred because of a conspiracy hatched up by Mateen Ahmad as his wife Khursina was contesting election against Naushad son of Nawab. Informant got the F.I.R. scribed from his son Mohd. Farid, covered a distance of 6 km. and lodged it at the police station Titawi, Muzzaffar Nagar on that day itself at 1.30 p.m. The post mortem reports of the two deceased from the prosecution side dated 20.10.2005 indicate that both the deceased persons had sustained fire arm injuries. The injured persons from the side of the prosecution also had sustained fire arm injuries. The autopsy report of Amir Ahmad, one of the assailants dated 21.10.2005 from the side of the accused indicate that he had sustained blunt object injuries. On these prosecution allegations the applicant had applied for his bail after the same was rejected by both the courts below.

Sri J. S. Sengar, learned Counsel for the applicant contended that the prosecution version is cooked up and manufactured and it had suppressed true version and genesis of the incident. He contended that it was the prosecution side which was the aggressor and it was they who started capturing the both and started indulging into fake voting and when stopped by Amir Ahmad they murdered him by assaulting him with lathi and dandas and then the prosecution side started firing as a result of which five persons from the side of the accused namely Hussain Ahmad. Manjibun Hasan, Abdul Wahid. Smt. Sajida, Km. Tahfim sustained fire arm injuries out of whom Hussain Ahmad is aged about 8 years, Km. Tahfim is aged about 18 years and Smt. Sanjeeda is aged about 40 years. He also contended that Smt. Mahjabeen also died because of the firing made by the prosecution side itself. He also contended that a F.I.R. of cross version from the side of the accused has also been registered as crime number 383A of 2005, under Sections 147, 148, 149, 504, 307 and 302, I.P.C. at the same police station. He further contended that the prosecution has suppressed the injuries of the five injured persons from the side of the accused so much so that it had not said any thing regarding their presence at the place of the incident when their presence on the spot at the time of the incident is cemented by the gun shot injuries sustained by them. He contended that there is absolutely no explanation for the injuries sustained by these live persons from the side of the prosecution and hence the prosecution version is not a true narration of the incident but is a tainted one and cannot be believed. He submitted that the boy Hussain Ahmad aged about 8 years had sustained serious firearm injuries so much so that they had fractures in bony cage and there was passive collapse of his right lung. He also submitted that Abdul Wahid and Hussain from the side of the accused were admitted in the hospital from 20.10.2005 to 8.11.2005. He submitted that since there is absolutely no explanation of the injuries sustained by the injured from the side of the accused therefore in view of the law laid down by the Apex Court in the case of Laxmi Singh v. State of Bihar, 1976 SCC , the prosecution version should not be accepted to be correct. He also pointed out that the injured persons from the side of the accused were examined on the same day of the incident in district hospital. He contended that the prosecution version that the incident occurred to take revenge is false and the version of the defence that it occurred to check the fake voting is more probable and natural otherwise from the prosecution allegations the injured persons from the side of the accused would not have sustained injuries and the deceased from the side of the accused would not have sustained blunt object injuries as so many persons from the side of the accused were armed with fire arm weapons and they would not have left Amir Ahmad at the mercy of villagers. Moreover from the version given by the prosecution the injured from the side of the accused will not sustain injuries by firearm. He submitted that as to which party was the aggressor can be decide only after the evidence is led during the trial and at this stage it cannot be said that the version of the defence is false or cooked up. He contended that the accused must get a fair chance of substantiating their version of right of private defence and since there is no specific allegation against the applicant he deserves bail. He also contended that the applicant does not have any criminal history nor he is wanted in any other case and that the applicant will not abscond nor tamper with prosecution witnesses and he is ready to co-operate with the trial.

Sri V. M. Zaidi, learned Counsel for the informant and the learned A.G.A. contrarily contended that the injury report of the injured persons from the side of the accused is fake and fabricated and in the F.I.R. of the prosecution itself the death of Amir Ahmad is mentioned. They also contended that it is day light incident and two people have lost their lives in the incident and many others have sustained injuries. They also contended that the case has been committed to the court of Sessions for trial and some of the accused have not surrendered as yet. They also submitted that the bail of co-accused Soban has been rejected by this Court on 13.9.2006 vide Bail Application No. 15796 of 2006 therefore the bail of the present applicant be also rejected. They also contended that the prosecution version is consistent with the medical report and therefore the bail application of the applicant should also be rejected.

I have considered the submissions raised by both the sides and have gone through the affidavit, counter-affidavit filed in this bail application and have gone through the bail rejection order of co-accused Soban. It is admitted that in this case one person from each side have lost their lives. It is also admitted that the incident occurred on the day of voting when the voting was going on. It is also clear that five persons from both the sides have sustained firearm injuries. It is also admitted that one lady Smt. Mahjabeen also lost her life but both the sides give their own account of her death. Time and place of incident is also more or less admitted. However the fact remains that the prosecution does not give any explanation for the fire arm injuries sustained by the side of the accused. Two of the inured from the side of the accused are children and one is an adolescent aged about 8 years. The injuries of theses injured persons cannot be self-inflicted nor they are superficial in nature. No body shoots a young boy of his side aged about 8 years to create a defence nor he manufactures gun shot injury on an unmarried girl aged about 18 years. The injury reports of the injured from the side of the accused indicate that they had sustained grievous injuries also. More over the version of the defence that the incident started because of booth capturing seems to be more probable though I do not express any final opinion on it. In the counter-affidavit in para 7 it is admitted that the election process was disturbed and booth capturing did take place. So at this stage no finding can be recorded that the version of the defence is false. While rejecting the bail of the co-accused this Court did not take into consideration the injuries of the injured persons from the side of the accused which are serious in nature and non-explanation of which rendres genesis of incident shrouded in mystery. Thus on the over all consideration including the fact that it is cross case and both sides must get fair opportunity to substantiate their version of incident and that the applicant does not have any criminal background and is not involved in any other case and that he has been in jail since 2005 and that there is no explanation of the injuries of injured persons from the side of the accused which are gun shot injuries and are serious in nature and which cannot be manufactured or cooked up and that two children and one lady from the side of the accused had also sustained fire arm injuries that I consider it appropriate to enlarge the applicant on bail during the trial on the following grounds:

(i) That the applicant will furnish a personal bond and two sureties each to a tune of Rs. 50,000 thousand to the satisfaction of the C.J.M., Muzzafar Nagar ;

(ii) That one of the two sureties will be his near relative ;

(iii) That the applicant will not leave district Muzzaffar Nagar without prior permission of trial court concerned and intimation to the concerned police station ;

(iv) That the applicant will co-operate with the trial and will not make any endeavour to tamper with prosecution witnesses ;

(v) That the applicant will report to the police station concerned every 2nd and 4th Sunday at a time to be fixed by officer in charge of police station concerned during the pendency of the trial.

Let the applicant Nishant be released on bail in the abovenoted case crime on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the C.J.M., Muzaffar Nagar.