Rizwan. and Waseem (in Jail) vs State of U.P.

Vijay Kumar Verma, J.—In both these applications, prayer for bail has been made on behalf of applicants Rizwan and Waseem, in case crime No. 190 of 2008, under Sections 147 148 149 364 302 201 404 411 IPC and Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Kotwali, District Meerut. Since both the bail applications pertain to the same case, hence for the sake of convenience, these applications are being disposed of by this common order. Papers are being referred in this order from the record of Crl. Misc. Bail Application No. 1238 of 2009.

Three dead bodies were found lying on 23.05.2008 in esteem car near Hindan river under the jurisdiction of P.S. Balaini, District Baghpat. After identifying the dead bodies, an FIR was lodged at P.S. Balaini against unknown persons on 23.05.2008 at 12.45 p.m. by the complainant Anil Kumar, s/o late Raj Pal Singh, who was posted in Special Cell of Delhi Police. The averments made in the FIR, in brief, are that Sunil Dhaka, younger brother of the complainant along with his companions Puneet Kumar Giri and Sudhir Kumar had gone to Sitaram Hostel at about 10.00 p.m. on 22.05.2008. When Sunil Dhaka did not come back to home, search for him was made in the night. In the morning of 23.05.2008, the complainant came to know that dead body of Sunil Dhaka is lying in white colour esteem car, which he (Sunil) had taken from his friend Deepak Sharma. On this information, the complainant and other persons reached at the place, where the car was standing and saw that the dead body of Sunil Dhaka was lying in between front and rear seats and in diggi of the car, dead bodies of Sudhir Kumar and Puneet Kumar Giri also were lying. It is further averred in the FIR that the complainant is posted in Special Cell of Delhi Police and Sri Krisn Giri, uncle of Puneet Kumar Giri, is also posted in Delhi Police as Incharge Special Cell and there is apprehension that due to enmity, some miscreants after abducting the deceased persons have committed their murder by causing them injuries by firearm and sharp edge weapons and their dead bodies have been left there in the vehicle.

Entry regarding registration of the case was made in G.D. No. 33 at 12.45 p.m. on 23.05.2008 at P.S. Balaini. After conducting inquest proceedings of the dead bodies, the post-mortem examination was also got conducted on the same day i.e. 23.05.2008.

I have heard arguments of Sri V.P. Srivastava, senior Advocate appearing for the applicants, Sri G.S. Chaturvedi, Senior Advocate, representing the complainant and AGA for the State.

The first and foremost submission made by learned Counsel for the applicants was that the FIR was lodged against unknown persons and no person also was named in the FIR as eyewitness of the incident and eyewitness account given by the witnesses Amit Ujjawal, Praveen Kumar, Sandeep and Pramod Kumar is after thought and hence no reliance can be placed on the statements of these witnesses. It was also submitted in this context by the learned Counsel that according to the first statement (Annexure-8) of the complainant Anil Kumar, recorded on 23.05.2008, the alleged eyewitness Amit Ujjawal had reached at the place where dead bodies were lying and thereafter FIR was lodged, but Amit Ujjawal did not disclose at that time that he and his companions Pramod and Sandeep had seen the incident of committing the murder of deceased persons and hence eyewitness account of the incident given by Amit Ujjawal and alleged eyewitnesses Sandeep and Pramod does not carry any weight. The contention of Sri V.P. Srivastava, learned Counsel for the applicants was that had Amit Ujjawal and his companions Sandeep and Pramod seen the incident of committing murder of deceased persons, then Amit Ujjawal ought to have disclosed this fact at the place where the dead bodies were lying.

Next submission made by learned Counsel for the applicants was that in the first statement (Annexure-13) recorded on 23.05.2008, Amit Ujjawal has not stated that he had seen the applicants or any other accused committing the murder of deceased persons and hence subsequent statement of this witness in which he has stated that murder of the deceased persons was committed in his presence by Hazi Izlal and his companions is after thought, which does not carry any weight, because if actually Amit Ujjawal had seen the accused persons committing the murder of deceased persons as alleged by him in his subsequent statement (Annexure-21) recorded on 04.06.2008, then he ought to have disclosed this fact in his very first statement, which was recorded just after registration of the case on 23.05.2008, but in his first statement, Amit Ujjawal has nowhere stated that murder of deceased persons was committed in his presence.

Regarding the statement of alleged star eyewitness Amit Ujjawal, it was further submitted by learned Counsel for the applicants that all the three deceased persons were well known to him and if he had accompanied the deceased persons up to the house of co-accused Hazi Izlal as stated by him in his statements u/s 161 Cr.P.C. and their murder was committed in his presence, then he ought to have informed the family members of the deceased persons, but he kept silent and even up to lodging the FIR, he did not disclose to any person that murder of deceased persons was committed in his presence. The contention of Sri V.P. Srivastava was that keeping silence on the part of Amit Ujjawal till lodging of the FIR and even up to recording his first statement by the investigating officer and not disclosing that murders of the deceased persons was committed in his presence by the accused persons is indicative of fact that he was not present at the time of alleged incident of committing murder of deceased persons.

Regarding the statement (Annexure-12) of alleged eyewitness Praveen Kumar recorded on 23.05.2008, it was submitted by learned Counsel that there was no occasion for this witness to go in mohalla Gudari Meerut, where the murder of deceased persons is alleged to have been committed in the house of Hazi Izlal at about 3.00 or 3.30 a.m. on 23.05.2008. It was also submitted by learned Counsel in this context that in his statement (Annexue 12), Praveen Kumar has not named the applicants Rizwan and Waseem and it is also not stated by him in this statement that murder of the deceased persons was committed in his presence.

About the eyewitness account of murders given by the witness Praveen Kumar in his second statement (Annexure 17) recorded on 31.05.2008, it was submitted by learned Counsel for the applicant that this statement is after thought, as in his first statement recorded on 23.05.2008, Praveen Kumar had nowhere stated that murder of the deceased persons was committed in his presence.

Regarding the eyewitness account given by the witness Pramod Kumar in his statement (Annesxure-18) recorded on 31.05.2008 and witness Sandeep in his statement (Annexure-23) recorded on 18.06.2008, it was submitted by the learned Counsel that there was no occasion for these witnesses to go in Gudari mohallah in the intervening night of 22/23.05.2008 at about 3.00 or 3.30 a.m. and hence being got up and chance witnesses, the statements of these witnesses do not carry any weight. It was also submitted by learned Counsel in this context that these witnesses in their statements have not disclosed any special reason for passing through sensitive muslim populated area of Gudari mohallah in odd hours at about 3.00 or 3.30 a.m. on 23.05.2008.

It was also submitted by learned Counsel for the applicants that in his statement (Annexure-13), the alleged star eyewitness Amit Ujjawal has not stated that he, Sandeep and Pramod Kumar had seen the incident of committing murder of deceased persons in the house of Hazi Izlal and it was only stated by Amit Ujjawal in his first statement that when the deceased persons went inside the house of Hazi Izlal, he came back to Ganga Nagar with Sandeep and Pramod on their motorcycle and hence, the statements of alleged eyewitnesses Amit Ujjawal, Sandeep and Pramod Kumar, in which they have stated that murder of the deceased persons was committed in the house of Hazi Izlal in their presence do not carry any weight.

Regarding the first statement of witness Dushyant Tomar @ Amit Rana (Annexure-9), it was submitted by learned Counsel that the witness has not named the applicants Rizwan and Waseem and hence statement of this witness is not relevant against the applicants. It was also stated in this context by learned Counsel that due to ulterior motive and mala fide intention, statement of witness Dushyant Tomar was recorded again by investigating officer on 18.06.2008, in which names of the applicants have been mentioned, but this subsequent statement being after thought does not carry any weight, because if this witness had seen the applicants leaving the esteem car as alleged by him in his second statement, then he ought to have disclosed the name of the applicants in his very first statement recorded on 23.05.2008 just after lodging the FIR, but in that statement no person was named and after a long gap, his statement was recorded again on 18.06.2008 with a view to falsely roped the applicants also in the alleged incident of leaving the esteem car having dead bodies.

About the alleged extra-judicial confession, which is said to have been made on 30.05.2008 by the applicants before the witness Kadam Singh as stated by him in his statement (Annexure-19) recorded on 31.05.2008, it was submitted by learned Counsel that after committing murder of three persons, the applicants or any other accused would not confess their guilt before a person, who was not in a position to save them from police. It was also submitted in this context that alleged extra-judicial confession is said to have been made on 30.05.2008, whereas prior to that, the police of entire Meerut district was vigorously searching the accused persons in connection with these three murders and in such situation, there was no occasion for the applicants to make any confession before the witness Kadam Singh, who was not any influential person and was not in a position to save them from police in these three sensational murders.

Regarding the recovery of blood stained clothes and chappal etc. from the house of co-accused Hazi Izlal as shown in site plan (Annexure-14), it was vehemently contended by learned Counsel that the applicants Rizwan and Waseem are not the family members of Hazi Izlal and they were not residing in his house at the time of incident and hence the evidence of recovery of blood stained clothes etc. can not be used against the applicants.

The learned AGA and counsel for the complainant vehemently opposed the bail application contending that four witnesses, namely, Amit Ujjawal, Pramod Kumar, Sandeep and Praveen Kumar had seen the accused persons including the applicants committing the murder of deceased Sunil Dhaka, Sudhir Kumar and Puneet Kumar Giri. It was also submitted by learned Counsel for the complainant that due to terror and fear of Hazi Izlal and his companions, no person can dare to depose against them and since the witnesses Amit Ujjawal, Pramod Kumar and Sandeep as well as Praveen Kumar have given eyewitness account about witnessing the incident of committing murder of deceased persons by Hazi Izlal and other accused persons including the applicants, hence in this heinous crime, the applicants should not be granted bail.

Much emphasise was laid by the learned Counsel for the complainant on the recovery of mobile set and ATM cards of deceased Sunil from the applicant Waseem and Razwan respectively on 02.06.2008 at the time of their arrest. It was vehemently contended by Mr. G.S. Chaturvedi, learned Counsel for the complainant and AGA that recovery of mobile set & ATM cards of deceased Sunil from the applicants Waseem and Rizwan shows their complicity in the incident of these three murders.

Regarding recovery of mobile set from the possession of applicant Waseem on 02.06.2008, it was submitted by learned Counsel for the applicants, that there is no evidence in the entire case diary to show that the mobile set which is said to have been recovered from Waseem at the time of his arrest on 02.06.2008 belongs to deceased Sunil, because no person has stated that the alleged mobile set was owned by the deceased Sunil. There was no sim card in the alleged recovered mobile set. Regarding the alleged recovery of ATM cards of the deceased Sunil from the possession of the applicant Rizwan, it was submitted by Sri V.P. Srivastava, learned Counsel for the applicants that the applicant Rizwan was not so foolish, who will keep ATM cards of the deceased with him in his pocket in the situation when the police of entire district was searching him and other accused persons and hence, the alleged recovery of ATM cards of the deceased, being fabricated, does not carry any weight. It was also submitted by learned Counsel in this context that it is not mentioned in the FIR that the deceased Sunil was keeping his ATM cards in his pocket in the fateful night. It was also submitted by learned Counsel for the applicants that there was no occasion for the complainant to know the details of the articles, which were kept in the pocket of deceased Sunil and other deceased in the fateful night. In this very context, it was also submitted that when any family member go from the house, he does not inform other family members as to what articles he is carrying with him in his pocket and hence, the statement of the complainant Anil Kumar, in which he has stated that his brother Sunil was keeping his purse, ATM Cards and mobiles in the fateful night, does not carry any weight, because there was no occasion for the complainant to know about the articles which were kept in the pocket of his brother Sunil in the fateful night. It was further submitted by learned Counsel for the applicant that after planting ATM cards, their false recovery from the pocket of applicant Rizwan has been shown with a view to falsely roped him in these blind murders.

Regarding the alleged recovery of ATM cards of deceased Sunil Dhaka from the possession of applicant Rizwan at the time of his arrest, it was also submitted by learned Counsel for the applicants that ATM cards and other articles appear to have been recovered by the complainant from the dead bodies of Sunil and other deceased and on that basis he has given details of the belongings of deceased persons in his statement (Annexure-8). It was also submitted in this context that the belongings which were recovered from the dead bodies were carried by the complainant with him with ulterior motive with a view to get the same planted on innocent persons to establish their complicity in these murders. It was further submitted in this very context by learned Counsel for the applicants that the complainant Anil Kumar, being posted in police department, is well versed in the art of falsely roping innocent persons in the cases of blind murders and it was for this reason that with the connivance of local police, the complainant did not get the recovery of the belongings of deceased persons shown in inquest reports and when the applicant Rizwan was arrested on 02.06.2008, false recovery of ATM cards of deceased Sunil was shown from him with a view to strengthen his alleged complicity in these blind murders. It was also submitted in this context that even a man of ordinary prudence would not keep the belongings of deceased in his pocket after committing his murder and hence the story of keeping ATM cards of deceased Sunil by the applicant Rizwan in his pocket and their recovery from him on 02.06.2008 is absolutely false and concocted.

It was also submitted that both the applicants have no criminal history and after falsely roping them in present case, they have been made accused of the offence punishable u/s 2/3 U.P. Gangster Act also, whereas the applicants have no concern with Hazi Izlal or other accused and they are not member of any gang.

I have carefully gone through the entire case diary and other material on record. Both the applicants are not named in the FIR, which was lodged on 23.05.2008 after seeing the dead bodies in esteem car near Hindan river. The name of these applicants came to light from the statement of Amit Ujjawal, who is brother of deceased Sudhir Kumar. From the case diary, this fact is borne out that Amit Ujjawal was present at P.S. Balaini at the time of lodging the FIR, as his name is mentioned in GD No. 33 dated 23.05.2008, in which entry about registration of present case has been made. Amongst the persons, who had accompanied the complainant to P.S. Balaini to lodge the FIR, name of Amit Ujjawal, s/o Satbir Singh is also mentioned, in GD No. 33 time 12.45 p.m. dated 23.05.2008, which shows his presence at P.S. Balaini at the time of lodging the FIR. In spite of being present at P.S. Balaini at the time of lodging the FIR, Amit Ujjawal did not disclose at that time that he along with Sandeep and Pramod Kumar had seen the incident of committing the murder of Sunil Dhaka, Sudhir Kumar and Puneet Kumar Giri. The incident of committing the murder of deceased persons is alleged to have occurred at about 3.00 or 3.30 a.m. in the intervening night of 22/23.05.2008, but the witnesses Sandeep and Pramod Kumar have not disclosed in their statements any special reason for passing through sensitive muslim populated Gudari mohallah in such odd hours. The fourth alleged eyewitness Praveen Kumar has not named the applicants Rizwan and Waseem in his first statement (Annexure-12), which was recorded on 23.05.2009 after registration of the case. The witness Dushyant Tomar @ Amit Rana also did not name the applicants in his first statement (Annexure-9) recorded on 23.05.2008. Therefore, having regard to all these facts and in view of the aforesaid submissions made by learned Counsel for the applicants, without expressing any opinion on merit, both the applicants deserve bail.

Let the applicants Rizwan s/o Usman and Waseem s/o Nasiru be released on bail in Case Crime No 190 of 2008, under Sections 147 148 149 364 302 201 404 411 IPC and Section 2/3 U.P. Gangster and Anti Social Activities (Prevention) Act, P.S. Kotwali, District Meerut on their separately executing a personal bond for Rs. 50,000/- and furnishing two sureties each in the like amount to the satisfaction of the court concerned and executing an undertaking with following conditions:

1.The applicants shall not tamper with the prosecution evidence by intimidating the witnesses.

2.They shall co-operate with speedy trial.

3.They shall not indulge in any criminal activity or commission of any crime after being released on bail.

On violation of any of aforesaid conditions, the prosecution would be at liberty to move application for cancellation of bail.