Asif @ Babu Khan @ Chhota Pathan @ Salman v. State

1. This is an application u/s 389 read with Section 482 Cr.P.C for bail and suspension of sentence.

2. Vide impugned judgment dated 08.04.2013, the appellant has been convicted for offence u/s 307/452/342 read with Section 34 IPC. It is the submission of learned counsel for the appellant that the question for consideration is whether the accused can be punished for offence u/s 307 IPC in the absence of a finding to the effect that there was common object or common intention on any of the accused to kill complainant/injured or the assault was made with the knowledge that the murder can also be caused in that assault. In their statement recorded u/s 313 Cr.P.C the 2013:DHC:4036 question pertaining to common intention was not put to the accused. Moreover, the ligature with which it was alleged that the accused persons tied the inmates was not even recovered. The brother of the complainant, namely Shekhu who was allegedly beaten and was tied up along with PW[1], PW15 and PW16 was neither medically examined nor produced as a prosecution witness. The sword, alleged to have been used in the incident was also not recovered. The katta allegedly used in the incident was produced by the wife of the complainant herself. There is no medical evidence that the complainant has suffered a gun shot injury. Iron rod which is alleged to have been used in the offence is not linked with the offence. PW15 and PW16 did not support the prosecution case. It is only the wife of the complainant who has supported the prosecution case and based on her testimony the accused persons including the appellant have been convicted and sentenced. Her testimony is fraught with omissions and improvements and it is unsafe to rely upon her testimony. The appellant is in custody for the last one year, as such pending the appeal, the sentence be suspended and appellant be released on bail.

3. The application has been contested by the State and in the status report it is submitted that as per the prosecution case, in the intervening night of 24/25.11.2009 at 12.40 a.m, on receipt of information vide DD No.19A regarding shooting of one person at Gali No.1, Kabir Nagar, ASI Subhash Chand along with Ct. Satya Narayan reached the spot i.e. C- 2/15A, Gali No.2, Kabir Nagar where they came to know that injured has been taken to GTB Hospital by his brother. After reaching GTB hospital and collecting the MLC of injured Sehbaz, his statement was recorded. FIR was got registered. During the course of investigation it was found that accused Arif was having a sword in his hand with which he gave a blow on the back of the victim. Supplementary charge sheet was filed against Mohd.Asif@ Babu@Chhota Pathan. It was further submitted that brother of the complainant Shekhu could not be examined since he is not traceable and the complainant has been murdered on 06.03.2011. Wife of the complainant has fully supported the case of prosecution, as such there is no ground for releasing the appellant on bail.

4. It is further submitted by learned Additional Public Prosecutor for the State that the appellant is involved in as many as 14 cases, that being so he is not entitled for release on bail.

5. As regards pendency of the cases against the appellant is concerned, it was submitted by learned counsel for the appellant that as per the list supplied by learned Additional Public Prosecutor for the State most of the cases are still pending investigation. He has been acquitted in two cases and has been convicted only in one case.

6. The case of prosecution in brief is that on receipt of information vide DD No.19A regarding shooting of one person at Gali No.1, Kabir Nagar, police officials reached the spot where they came to know that inured has been taken to GTB hospital by his brother. Thereupon the police officials went to GTB hospital and recorded the statement of injured Shehbaz wherein he stated that he along with his family is residing in a rented house of Sayed Salman Zaidi and running a kabadi shop. On that day at about 12.30 a.m, he returned to his house from Jafrabad and the moment he reached the door of his house, Shahnawaz@Chhota Pathan@Babu and Shehbaz who were known to him from before came out from his house and started beating him. Shehbaz who was having katta in his hand fired which hit his left arm. Shehbaz hit on his head with an iron rod. Chhota Pathan caught hold of him and told “Maro Sale ko. Yeh bohot police ki mukhbari karta hai.” Arif who was having sword in his hand hit on his waist. His wife Shaheen, niece Gulista, Shagufta and brother Shekhu were present in the house. The accused persons had tied the hands of his brother Shekhu. When his wife tried to save him, they pushed her and she fell down. When his nieces and wife raised alarm Bachao Bachao, all the accused tried to run away. He tried to catch hold of Shahnawaz. He managed to escape. Meanwhile his katta fell there. Police was informed. He was brought to hospital by his brother.

7. As revealed from the record, the injured has been murdered while his brother Shekhu is not traceable. The allegations are very serious in nature. The infirmities pointed out by learned counsel for the appellant will be required to be considered at the time of hearing the appeal. Keeping in view the gravity of the offence coupled with the antecedents of the appellant, there is no ground for suspension of sentence or releasing the appellant on bail. The application is accordingly dismissed.

SUNITA GUPTA, J AUGUST 13, 2013 as