The Allahabad High Court on Friday granted bail to a security guard who has been accused of killing an Ex-BSP MLA, Haji Aleem while noting that the case is based on circumstantial evidence and the circumstances are yet to be established during the trial.
A single-judge bench of Justice Pradeep Kumar Srivastava passed this order while hearing a Criminal Misc bail Application filed by Mohd. Sharib.
The bail application has been given by applicant Mohd. Sharib in a case under Section 302/ 120B IPC, P.S.- Kotwali Nagar, District – Bulandshahr.
The FIR has been lodged by informant Mohd. Yunus on October 13, 2018, in respect of an incident dated October 9, 2018, in the night and the allegation is that the deceased was an Ex-MLA and was living in Bulandshahar. In the morning, till 11 AM, the door of his bedroom did not open and therefore, after breaking the window, members of his family and others opened the door which was locked from inside. The deceased was found lying on the bed in bleeding condition and there was a gunshot injury on his head. The informant suspected that some unknown person killed him and lodged an FIR against the unknown. On the basis of FIR, the investigation started, the inquest report was prepared and post -mortem of the dead body was undertaken.
Senior Counsel submitted that there is no reason for the accused applicant to commit murder of the deceased, he was not named in the FIR and it was not even suspected in the FIR that he might have committed the murder of the deceased. There was no motive available to the applicant. In the initial statement recorded by IO, nothing was stated against him.
Subsequently, in order to implicate the applicant, evidence was manipulated, false evidence was created and certain witnesses were re-examined who made improvements to implicate the accused applicant. There is no criminal history of the accused applicant.
It is further submitted that the charge-sheet has already been filed after the Police investigation and the applicant is prepared to furnish sureties and bonds, therefore, there is no possibility of his either fleeing away from the judicial process or tampering with the evidence. The applicant is languishing in jail since March 19, 2020, and undertakes that he will not misuse the liberty of bail if granted and cooperate in the trial.
Senior Counsel appearing for the informant and Additional Government Advocate for the State have strongly opposed the bail application and have submitted that the matter was investigated and after collecting enough evidence it was found that the accused applicant committed murder in a very planned way.
Senior Counsel for the informant side has submitted that the deceased with the accused was going to Delhi from Aligarh and it was the accused applicant who insisted for stay in Bulandshahar. On his pursuance, the deceased agreed to stay in Bulandshahar where his wife resides. In the evidence, it has come that the accused and the deceased both slept in the same room and the key of the room was always with the accused applicant. After committing the murder the accused persons locked the door and it is why the door was found locked from inside but no key was recovered from the room.
Submission is that the accused applicant has every opportunity as he was with the deceased at the relevant time and having the key of the bedroom. The murder was committed by the pistol which was in the name of the wife of the deceased and in the evidence it has come that pistol was always with the accused applicant. It has been also submitted that the murder was committed in such a planned way that it gave the impression that it was a case of suicide.
Senior Counsel for the applicant submitted that there is no evidence against the applicant; there is a serious contradiction in the statement of the witnesses and all the statements relied upon by the state was recorded after a long gap and subsequently by way of improvement for implicating the accused applicant and the witnesses have changed their version and have given false and concocted statement against him.
“In view of the above discussion, it is clear that the applicant is not named in FIR; no motive was assigned to him for causing death of the deceased; there is no eyewitness account supporting the allegation against the applicant; even suspicion was not expressed against him in the FIR even though FIR was lodged by the brother which was lodged on fifth day after the date of incident and there was sufficient time with the informant for making allegations, or at least expressing suspicion against the applicant”, the Court observed.
“The case is totally based on circumstantial evidence and it is difficult at this stage to say that the circumstances alleged against the applicant, if taken together and linked, form a chain of circumstance conclusively leading to an inference that the accused-applicant must have committed the said offence. Apparently unrelated circumstances if joined together must form a chain of circumstances indicating the guilt. I find at this stage that such a link is missing”, the Court said.
The Court noted that,
Moreover, the witnesses relied upon by the state, have not stated anything against the applicant when examined earlier and FR was submitted. Later on, after about 10 months and more, during reinvestigation, the same witnesses started expressing suspicion and four witnesses including two co-accused persons started saying the fact of applicant sleeping in the room of the deceased for which there appears to be no reason nor it appears to be natural in view of the status of the deceased.
Taking into consideration the entire facts and circumstances and the evidence available on record at this stage, the bail application deserves to be allowed. The bail application is therefore allowed, the Court said.
Also Read: Supreme Court says senior public officers should not be called to court unnecessarily
The Court ordered that Applicant Mohammad Sharib be released on bail in Case under Section 302/ 120B IPC, P.S.- Kotwali Nagar, District – Bulandshahar on following conditions:
(1) The applicant will cooperate with the trial and remain present personally on each and every date fixed for framing of charge, recording of evidence as well as the recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that she is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.
(2) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.
(3) The applicant will not indulge in any unlawful activities.