Riyazul vs State of U.P.

Heard learned Counsel for the applicants-Appellants and the learned Additional Government Advocate on the aforementioned applications for bail moved u/s 389 Code of Criminal Procedure along with the instant pending appeals.

In all the four criminal appeals there are eight Appellants, namely, Riyazul, Usman, Rahman, Saleem, Rajjan, Saheb, Idu and Munna. They have preferred the appeals against judgment and order dated 24.04.2010 passed by the learned Special Sessions Judge, SC/ST Act, Court No. 2, Balrampur in Sessions Trial No. 68 of 2001 whereby they have been convicted under Sections 147 and 149/304 IPC read with Sections 3(2)(5) SC/ST Act and have been sentenced for maximum term of life imprisonment with fine stipulation.

We have gone through the judgment and record of lower court.

It comes out that some theft was committed in the house of one Mohammad Sharif in which three persons, who entered into the house, namely Nanbabu, Baitholey and Puttan were apprehended, but one Baithe was able to flee away from the spot after taking certain valuables and cash of complainant-Mohammad Sharif. Nanbabu, Baitholey and Puttan, who were dealt with inmates of the house as well as village people, were taken to the police station along with boxes and suitcases, which were left from taking away, and the FIR vide case crime No. 175 of 1996 was lodged by Mohammad Sharif on 15.06.1996 at 7.10 a.m. Further case is that Nanbabu died while being taken to the police station and Baitholey died in jail on 23.06.1996. Later on, as prosecution story further goes, an FIR was lodged vide case crime No. 175-A/1996 by one Ram Chandra against inmates of house of Mohammad Sharif, alleging therein that Nanbabu, Baitholey and Puttan were beaten to death by them i.e. Appellants of the present appeals on the pretext that they had committed theft in the house of Mohammad Sharif on 15.06.1996. In support of its case, the prosecution has examined various witnesses, including Kanti (PW-3), said to be wife of Baitholey, who has stated that she is resident of about 3 kilometers away from the place of occurrence and by chance she had reached there when she came out to ease herself.

Argument advanced by the learned Counsel for the Appellants is that the incident of theft had taken place in the house of Mohammad Sharif in the midnight of 14/15.06.1996. One of the injured, namely, Puttan, who was also arrested by inmates of the house, was examined as PW-4, but only his examination-in-chief has been done and opportunity of his cross-examination was not afforded. After going through the evidence led by the prosecution the Appellants have been convicted and sentenced for life imprisonment under the aforesaid sections although initially the FIR was lodged u/s 302 IPC. Thrust of the argument of the learned Counsel for the Appellants is that the FIR, which was lodged by Ram Chandra, father of Nanbabu, on 13.08.1996 vide case crime No. 175-A of 1996 speaks itself that Nanbabu, Baitholey as well as Puttan (PW-4) were dealt with by Lathi, Danda and Sariya by the mob with the allegation that they had committed theft in the house of Mohammad Sharif. The outcome of the prosecution is that Baitholey and Nanbabu along with Puttan were dealt with by the mob for committing theft in the house of Mohammad Sharif. The prosecution has failed to prove its case beyond reasonable doubt so as to get the Appellants convicted even u/s 304 IPC. Provisions of SC/ST Act will also not come into play for the reason that there is nothing on record to show that the deceased belong to scheduled caste category. It is stated that all the Appellants were on bail during the course of trial and they did not misuse the liberty of bail granted to them. It is also stated that the appeals are of the year 2010 and there is no likelihood of the same being heard and decided in near future.

There seems some substance in the argument advanced by the learned Counsel for the Appellants.

Accordingly, we direct that Appellants-Riyazul, Usman, Rahman, Saleem, Rajjan, Saheb, Idu and Munna, convicts of the aforesaid sessions trial, be released on bail on each of them furnishing a personal bond and two sureties each in the like amount to the satisfaction of Chief Judicial Magistrate/Court concerned.

Realization of half of the fine is stayed and remaining half of the fine shall be deposited by the Appellants within one month from the date of their release on bail.

Chief Judicial Magistrate/Court concerned is directed to transmit to this Court photocopies of bond and sureties filed by the Appellants to be preserved in the record maintained here.