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Safat Rasool v. State Of U.P. - CRIMINAL APPEAL No. 898 of 2004 [2005] RD-AH 761 (16 March 2005)


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Court No. 46.

Criminal Appeal No. 898  of 2004

Safat Rasool Versus State of U.P.

connected with

Criminal Appeal No.1419 of 2004

Wasif Haider Versus State of U.P.


Criminal Appeal No.1430 of 2004

Haji Atiq Ahmad Versus State of U.P.


Criminal Appeal No.1518 of 2004

Mumtaz @ Maulana Versus State of U.P.

Hon'ble R. C. Deepak, J.

Hon'ble M. K. Mittal, J.

The accused appellants Wasif Hider in Criminal Appeal No. 1419 of 2004,  Hazi Atiq Ahmad in Criminal Appeal No. 1430 of 2004, Mumtaz @ Maulana in Criminal Appeal No. 1518 of 2004, and Safat Rasul in Criminal Appeal no 898 of 2004 have prayed for release on bail during the pendency of their appeals as they have been convicted under Sections 302/149, 307/149, 148 IPC and Section 7 Crl. Law Amendment Act and have been directed to undergo different imprisonment including life imprisonment. Sentences have been directed to run concurrently.

We have heard Sri Manish Tiwari, Sri M.P.Saxena, learned counsel for the accused appellants, Sri Mewa Lal Shukla, learned A.G.A. for the State. The list was revised but none appeared to argue on behalf of Mumtaz @ Maulana. His appeal being connected with other appeals, the bail matter has been considered. We  have also perused the record.

The prosecution case is that on 16.3.2001, there was a news that 'Holy Kuran' was burnt in Delhi and as a repercussion thereof members of particular community had collected at Parade Crossing in the evening in Kanpur City. Curfew was also imposed in some of the areas including P.S. Moolganj. Chandra Prakash Pathak, A.D.M. (Finance) along with other officers and Police Personnel was present at Parade Crossing to maintain law and order. Information was received that 200-300 rioters were making mischief by firing and looting at Chaubey Gola Mandir. On this information, Sri Pathak and Police force proceeded towards Naisarak at about 6.30 pm and when they reached near Nurani Mosque, the rioters fired and a shot hit Sri Pathak in his chest. Ramchandra, the orderly of Sri Pathak, was also injured. They were shifted to hospital but Sri Pathak succumbed to his injuries. In this matter, first telephonic information was given and then report was lodged by Rajendra Dhar Dwivedi, S.O. Moolganj, the same night at 8.05 p.m.

The postmortem report shows that Sri Pathak received fire arm wound of entry of 1 cm X 1cm X heart cavity deep in the middle of both collar bones. Blackening was present all around the injury. The Doctor also noted the fire arm wound of exit. However, the Doctor was not certain whether the bullet had passed out of body and therefore, he took X-ray. In X-ray, bullet was seen and the Doctor again opened the body but could not recover bullet and he instructed the Police Personnel to collect the bullet at the time of cremation and the bullet was recovered from the place of cremation. The accused Mumtaz was arrested in Delhi on 30.7.2001 and was brought to Kanpur on 3.8.2001. On the basis of confessional statement, recovery of ammunition was made from the house of accused Wasif Haider on 4.8.2001. Later a licensee pistol was also recovered from the house of Wasif Haider on 18.8.2001. The accused Hazi Atiq Ahmad was arrested by the Police on 17.9.2001 and Safat Rasul was arrested on 18.9.2001. The accused were put up for test identification on 27.9.2001 and all the accused were correctly identified by Rajendra Dhar Diwedi, SHO P.W.-2, Sukh Sagar Shukla, Collector Ganj, Kanpur P.W.-3,  Dambar Singh, H.C. P.W.-4, Maiku Lal Rawat, S.I., P.W.-5 and Shyama Kant Tewari, SHO, Nazirabad, Kanpur P.W.-6.

Learned counsel for the accused appellants have vehemently argued that the accused have been falsely implicated and that they have been challaned and convicted and are languishing in jail only because the murder of A.D.M is involved. According to learned counsel for the accused appellants, F.I.R. shows that fire was made from the roof of Sunahari Mosque whereas in the evidence, it has been developed that the incident took place near Nurani Mosque. According to him, the two mosques are distantly situated, distance being 1-1/2 farlongs between them. He further contended that the incident took place on 16.3.2001 and the accused Mumtaz was arrested in this case on 3.8.2001 and Wasif Haider on 4.8.2001 but the identification parade was conducted with delay on 27.9.2001 and on account of this delay, the identification testimony cannot be said to be reliable. He further contended that the prosecution has not examined Ramchandra, who would have been an independent witness in this case as he is also alleged to have received fire arm injury.

Learned A.G.A contended that the accused persons were seen by the Police witnesses who were on duty and there was rioting in the city. He further contended that the accused Mumtaz had been taken to Delhi in other case and after his return, the identification was conducted on 27.9.2001. Learned A.G.A. cited the case of Symon and others versus State of Karnataka 2004 (2) JIC 855 (SC) and Pramod Mandal Versus State of Bihar 2005 SCC (Crl) 75 and contended that the law does not prescribe any time limit within which the test identification parade should be  made and each case has to be assessed on its facts. He further contended that the accused were also correctly identified by these witnesses in the Court during trial. He further contended that accused were kept baparda after their arrest and the witnesses have stated that they had seen the accused persons at the time of incident and then at the time of test identification parade and had not seen them in between. He further contended that there is no reason to disbelieve the testimony of these witnesses. He also contended that in the facts and circumstances of the case, the murder of a Govt. Officer, who was busy in maintaining law and order situation, on account of rioting in the city, was committed and the accused are not entitled to bail and at the most the hearing of the appeal may be expedited.

A Govt. Officer was killed by the rioters and the police personnel, whose presence cannot be doubted, have identified the accused persons. No enmity has been alleged with the prosecution witnesses and there is no reason of false implication of these accused persons.

. In view of facts and circumstances of the case, but without prejudice to the merits of the appeal in any manner whatsoever, we are of the opinion that the accused appellants are not entitled to bail at this stage; therefore, the bail application of the accused appellants is liable to be rejected. The same is accordingly rejected.

There is no likelihood of the appeal being heard in near future and, therefore, it is expedient in the interest of justice that the hearing of appeal be expedited.

Let the record be placed before the Hon'ble the Chief Justice for passing an appropriate order for expediting the hearing of the appeals.

Dated: 17.3.2005



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