SHER MOHD Vs. STATE OF U P

JUDGEMENT

(1.) COUNTER affidavit filed today is taken on record. Heard the learned counsel for the applicant, learned A.G.A. and perused record. The applicant is involved in Case Crime No.214 of 2008, under Sections 302, 201 I.P.C., Police Station G.R.P. Barabanki, District Barabanki. As against the complicity of the applicant it is submitted that the prosecution has come up with a strange and unbelievable story and the entire prosecution case is patently unbelievable. It is said that the deceased who happens to be a brother-in-law of the applicant has been killed by the applicant. The motive is said to be an amount of rupees sixty- seventy thousands which was allegedly taken on loan by the applicant from the deceased which was not being returned to him. However, it has come in the F.I.R. itself that some Panchayat took place and sister of the applicant was then sent with the deceased. It is said that the alleged motive, if any, thus had no significance. Thereafter according to the prosecution story the deceased who was working in Bombay, came to his ancestral home via his in-laws house so that he may take back the aforesaid amount and the applicant also informed about it to the village pradhan, Sant Saran Yadav on telephone. But after about 15 minutes it is said that village pradhan received another phone call from the applicant that the deceased died in a train accident. Learned counsel for the applicant submits that for the reasons best known to the Investigating Officer till the filing of the bail application the statement of village pradhan was not recorded under Section 161 Cr.P.C. This averment has not been controverted in the relevant paragraph of the counter affidavit. It is added that instead statement of one Nadeem has been recorded who happens to be a brother-in-law of the deceased and he is a resident of another village far away from the place of the incident. It is said that an attempt has been made to make this person as a chance witness but the reason of his presence is quite improbable and incorrect. Similarly the other witness Rafiq is a friend of Nadeem whose statement has also been recorded. It is said that there was no source of light at the place where they were said to be standing. It has also not been shown in the site plan. Moreover, the statement of even these witnesses were recorded on 06.09.2008 i.e. after about one month of the incident. Learned A.G.A. points out that the statement of the aforesaid Sant Saran Yadav has now been recorded by the Investigating Officer 08.01.2009 i.e. after filing of the bail application. The learned counsel for the applicant further submits that even if the statement of the aforesaid two witnesses i.e. Nadeem and Nafiq are taken to be correct then they have only seen the applicant in the company of the co-accused Mukeem. The deceased was not there. It is therefore, said that there is no connecting evidence in this case and the entire case is based on a very fragile type of circumstantial evidence which does not constitute a complete chain. He is said to be in jail from August, 2008. There is no criminal history against him. The bail is however, opposed by learned A.G.A. The points pertaining to nature of accusation, danger of accused absconding or fleeing if released on bail, character, behaviour and position of the accused, severity of punishment, reasonable apprehension of tampering the witnesses, prima facie satisfaction regarding proposed evidence and genuineness of the prosecution case were duly considered. In view of the aforesaid facts and circumstances and without entering into the merits of the case and particularly having regard to the fact that the entire case is based on circumstantial evidence which does not constitute a complete chain, I find it to be a fit case for granting bail. Let the applicant (Sher Mohd.) be enlarged on bail on his furnishing a personal bond and two sureties in the like amount to the satisfaction of the Magistrate/court concerned.