MUKESH SHARMA Vs. STATE OF U P

JUDGEMENT

(1.) Heard Sri J.B. Singh, learned counsel for the applicant, Sri Deepak Dubey and Sri Siddhartha Shankar Mishra, learned counsels for opposite party no. 2 as well as learned A.G.A. and perused the material placed on record.

(2.) Instant application has been filed with the prayer to quash the impugned order dated 30.1.2019 and 14.06.2019 passed by Additional District and Sessions Judge, Hapur in Session Trial No.253 of 2016 (State Versus Ankush and others) bearing Case Crime No.408 of 2014 under Sections 147, 148, 149, 302, 120-B I.P.C. and 7 Criminal Law Amendment Act, Police Station Hapur Nagar, District Hapur and further direct learned trial judge to summon the witness i.e. record keeper / Officer of (Immigration Department), Indira Gandhi International Airport, New Delhi along with record as mentioned in the application moved by the applicant under Section 233(2) Cr.P.C.

(3.) The factual background, in short, giving rise to present petition is that according to prosecution the F.I.R. was lodged by opposite party no.2 against six accused persons including the applicant registered under aforesaid case crime number and sections on 13.07.2014 at 1.15 p.m. It is alleged that the applicant and his associates on account of enmity over family property dispute on 13.07.2014 at 11.45 a.m. surrounded informant's son in front of his house and all the accused resorted to indiscriminate firing due to which he succumbed to the injuries subsequently. After investigation charge-sheet was laid and the case was committed to the court of sessions. It is pertinent to mention here that the applicant is in jail since 5.12.2014. The applicant moved his bail application in which he has taken specific plea that aforesaid incident took place at about 11.45 a.m. on 13.07.2014 near the house of the deceased but in fact the applicant was not present in India at the time and date of the incident and was present in Nepal. In fact, the applicant along with his brother, Sanjay had gone to Kathmandu on 12.07.2014 by Indigo No.6E31 and the flight departed at 11.25 a.m. on 12.07.2014, the copy of Boarding Passes and air tickets were also appended along with the bail application. It was also stated that the applicant and co-accused, Sanjay came back from Kathmandu to New Delhi by Indigo Flight No.6E34, departure time 8.10. p.m. on 13.07.2014 and the applicant was travelling in the said Flight on Seat No.47. The copies of the air tickets and the Boarding Passes and relevant documents were also appended along with bail application. It was also stated that during 12.07.2014 and 13.07.2014, he and co-accused,Sanjay stayed in Shiv Shanker Hotel Jaybageshwar Pashupati Nath, Kathmandu, Nepal. Copy of the receipt of said hotel was also appended with the bail application. Therefore, a specific plea of alibi was taken that it was impossible for the applicant to be present at the place of occurrence on 13.07.2014 at about 11.45 a.m. by no stretch of imagination.