# Nabi Ahmad v. State of U.P

- **Citation:** (2023) 11 ILRA 724
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-02
- **Case number:** Criminal Appeal No. 7302 of 2022
- **Bench:** Ashwini Kumar Mishra, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nabi-ahmad-v-state-of-u-p-49398
- **Pages:** 12

## Headnote

G.A., Sri Indra Deo Mishra, Sri Shri
Ram
(Rawat),
Sri
Shushil
Kumar
Mishra

Criminal Law - Indian Penal Code,
1860
-
Sections
147,
148,
452,
307/149,
302/149
&
506
-
Suspension
of
Sentence
-
From
perusal of record, it transpires two
persons murdered in broad daylight,
entire incident captured in CCTV -
Although footage was not proved in
absence of requirement of Section
65-B of Evidence Act, it was produced
before trial court - No specific role
assigned to co-accused/appellants in
FIR or in St.ment of PW-1 and PW-2,
they have kirpan and no injury found on
deceased and injured, which could be
inflicted from Kirpan - Being women, they
are entitled to benefit of Section 437
Cr.P.C - Considering their ages, their
sentence is suspended during pendency of
appeal - Other co-accused are released on
bail, as their names not appear in FIR,
their involvement emerges only from
complainant's supplementary St.ment - No
specific role is attributed to them in
11 All. Nabi Ahmad Vs. State of U.P.
725
testimonies of injured witnesses PW-1
and PW-2 - Specific findings exist against
other appellants - One of accused shot
dead Jaspal Kaur and injured Jaspal Singh
succumbed to injuries the next day in
hospital, weapon recovered at instance of
accused - PW-1 (complainant ) and PW-2
(injured eye witness) consistently named
accused as shooters - Other co-accused
was
identified
as
having
entered
complainant's house with main accused.
(Para 19, 32 to 34)

Appeal partly allowed. (E-13)

List of Cases cited:

## Text

724 INDIAN LAW REPORTS ALLAHABAD SERIES
justice. The opening phrase of section 340
Cr.P.C. reads by words "Court is of the
opinion that it is expedient in the interest of
justice". This goes to show that even if the
prima-facie case is made out, even than the
court is not bound to take any action
against the errying party. It is to be mention
by the court that it is in the interest of
justice to initiate the proceedings against
the erring party under section 340 Cr.P.C.
and the expediency will normally be judged
by the court and not by the person effected
by such forgery.

24. Thus, from the above mentioned
discussions it is clear that no false or
fabricated evidence was produced or
prepared or used by the opposite party no.1
to procure the conviction and sentence nor
it is pleaded that it will affect the
administration of justice or it is expedient
in the interest of justice to initiate the
proceedings against the opposite party no.1.
Per contra, it is clear from the record that
appellant has filed 37 cases against the
opposite party no.1 and her family
members, who is already living in marriage
relationship with another person after the
dissolution
of
marriage
with
the
present appellant and it is the attempt
by the appellant to throw the stone in
the peaceful life of opposite party
no.1, such attempt should nabbed and
curbed. So that vexatious litigation for
harassment of counter part in the
matrimonial
relationship
may
be
discouraged. Hence the appeal has no
force and is liable to be dismissed.

25. Accordingly, the present
appeal is dismissed with the cost of
Rs.50,000/-, which shall be deposited,
within 15 days from today by the
appellant in the legal cell of this
Court.
----------
(2023) 11 ILRA 724
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.05.2023

BEFORE

THE HON'BLE ASHWINI KUMAR
MISHRA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 7302 of 2022
connected with other cases

Nabi Ahmad ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Raghuvansh Mishra

Counsel for the Opposite Party:
G.A., Sri Indra Deo Mishra, Sri Shri
Ram
(Rawat),
Sri
Shushil
Kumar
Mishra

Criminal Law - Indian Penal Code,
1860
-
Sections
147,
148,
452,
307/149,
302/149
&
506
-
Suspension
of
Sentence
-
From
perusal of record, it transpires two
persons murdered in broad daylight,
entire incident captured in CCTV -
Although footage was not proved in
absence of requirement of Section
65-B of Evidence Act, it was produced
before trial court - No specific role
assigned to co-accused/appellants in
FIR or in St.ment of PW-1 and PW-2,
they have kirpan and no injury found on
deceased and injured, which could be
inflicted from Kirpan - Being women, they
are entitled to benefit of Section 437
Cr.P.C - Considering their ages, their
sentence is suspended during pendency of
appeal - Other co-accused are released on
bail, as their names not appear in FIR,
their involvement emerges only from
complainant's supplementary St.ment - No
specific role is attributed to them in
11 All. Nabi Ahmad Vs. State of U.P.
725
testimonies of injured witnesses PW-1
and PW-2 - Specific findings exist against
other appellants - One of accused shot
dead Jaspal Kaur and injured Jaspal Singh
succumbed to injuries the next day in
hospital, weapon recovered at instance of
accused - PW-1 (complainant ) and PW-2
(injured eye witness) consistently named
accused as shooters - Other co-accused
was
identified
as
having
entered
complainant's house with main accused.
(Para 19, 32 to 34)

Appeal partly allowed. (E-13)

List of Cases cited:

1. Preet Pal Singh Vs. St. of U.P., 2020 (8) SCC
645, (Para 35)

2. Kashmira Singh Vs St. of Punj., 1977 (4) SCC
291

3. Babu Singh & ors. Vs St. of U.P., 1978 (1)
SCC 579

4. Kalyan Chandra Sarkar Vs Rajesh Ranjan &
anr.2004 (7) SCC 528, (Para 11)

5. Chaman Lal Vs St. of U.P. & anr.2004 (7) SCC
525

6. Kishorij Lal Vs Rupa & ors., (2004) 7 SCC
638, (Paras 6, 8)

7. Data Ram Singh Vs St. of U.P, (2018) 3 SCC
22

(Delivered by Hon'ble Vinod Diwakar, J.)

1. We have heard Shri Raghuvansh
Misra, Shri Vimlendu Tripathi, Shri Rajeev
Lochan Shukla, learned counsels for the
appellants,
Shri
I.D.
Mishra
learned
counsel for the informant and learned
A.G.A. for the State.

2. The accused-appellants- Nabi
Ahmad, Banta @ Beant Singh, Rizwan,
Farookh, Amanveer Singh, Ranjeet Kaur,
Karam Singh and Gurpawan Kaur have
been convicted in Sessions Trial No. 379 of
2017 (State of Uttar Pradesh Vs. Amanveer
Singh and others) arising out of Case Crime
No. 419 of 2017, under Sections 147, 148,
452, 307/149, 302/149, 506 I.P.C., along
with connected Sessions Trial Nos. 377 of
2017 and 378 of 2017, arising out of Case
Crime Nos. 431 of 2017 and 432 of 2017
respectively,
Police
Station
Bisalpur,
District
Rampur
and
the
maximum
sentence of life imprisonment is awarded to
all the accused-appellants. The rest of the
sentences are lesser sentences, and all the
sentences have been ordered to run
concurrently.

3. As per the prosecution case, the
complainant's real brother Gurcharan Singh
was murdered about two and a half years
ago due to family enmity over land, whose
case is pending trial in District Rampur. An
attempt was also made to kill the
complainant's real sister, Jaspal Kaur, and
its report was registered at P.S. Bilaspur.
On 28.06.2017 at around 03.00 p.m., the
complainant's father, Sukhwinder Singh,
was busy in the demarcation of land with
the help of Patwari, Kanoongo and two
police officers. All of a sudden, the
complainant heard the commotion and saw
Amanveer Singh son of Karam Singh,
Karam Singh, Ranjeet Kaur, Gurpawan
Kaur, Banta Singh, Nabi Ahmad @ Nabia,
Farookh Ahmad and son of Nabia Ahmad,
along with some unknown persons barged
into the house of the complainant and
shouted, no one should be spared today.
After hearing the threatening call, all
started running here and there to save their
lives. Meanwhile, Amanveer Singh and his
accomplice Nabia and Farookh shot at the
complainant's maternal uncle Jaspal Singh
and
caused
severe
injuries.
The
complainant's mother also rushed inside the
726 INDIAN LAW REPORTS ALLAHABAD SERIES
house to save her life. Amanveer shot at her
from his pistol and caused grievous injuries
to her. The complainant's real sister Jaspal
Kaur hid inside the bathroom. Amanveer
broke the door and shot her dead. She died
on the spot. The complainant and her
mother saw Jaspal being shot at; thereafter,
Amanveer shot at the complainant's father,
Sukhwinder Singh, and somehow he saved
his life. The entire incident was captured in
a
CCTV
camera
installed
at
the
complainant's house. After hearing the
sound of the gunshot, the police and local
people arrived, and on their challenge, the
assailants fled towards the sugarcane field.

4. On the basis of such written
complaint, Case Crime No. 419 of 2017 at
P.S.
Bilaspur,
District
Rampur,
was
registered under sections 147, 148, 149,
452, 307/149, 302/149 and 506 I.P.C.
Thereafter,
the
police
initiated
the
investigation.

5. Jaspal Singh and Gurmeet Kaur
were seriously injured in the shoot-out,
whereas Jaspal Kaur died on the spot. The
deceased age was 28 years. The following
ante-mortem injuries were present on the
dead body.

"(a) Traumatic swelling 5cm x
2cm on the back side of the head towards
left and was 12 cm above the left ear.

(b) Firearm wound of entry
2.5cm x 1.00 cm viscera deep at the
back of the chest towards left 9 cm
below left shoulder and collar of
abrasion was present."

6. The Doctor opined the cause of
death was a result of shock and
excessive bleeding due to ante-mortem
injuries.

7. The injured Jaspal Singh was
immediately taken to the hospital, and he
died on the next day i.e. on 29.06.2017, at
Gangasheel
Hospital
following
antemortem injuries were noticed:-

"(a) 1cm x 1cm lacerated wound
cavity deep. There was blackening and
signs of singing all around the wound in
the middle of chest 10 cm towards the
centre from right nipple and was in 3
O'Clock position. This wound was wound
of entry and the margins were inverted.

(b) Surgical wound 26 cm long,
had 30 stitches in the middle of the
stomach, and was 6.5 cm below injury
number 1.

(c) One injury 1cm x 1cm x cavity
deep was of tube that had been inserted
after surgery and was on the left side of the
stomach
9
cm
away
from
the
navel/umbilicus.

(d) One injury 1cm x 1cm x cavity
deep was of tube that had been inserted
after surgery and was on the right side of
the stomach 8 cm away from the
navel/umbilicus.

(e) One injury 1cm x 1cm x cavity
deep was of tube that had been inserted
after surgery and was 1.5 cm above the
right side of injury number 4.

(f) Stitched wound that was of
tube inserted into Lungs and was 1.5 cm
long and was on right side of the chest at a
distance of 10 cm from right nipple in 8
O'Clock direction.

(g) Surgical wound 4cm x 1cm x
cavity deep on right side of lower waist 14
cm above the iliac crest.
11 All. Nabi Ahmad Vs. State of U.P.
727

The injured Gurmeet Kaur wife of
Sukhwinder Singh was examined and
following injuries were noticed:-

(a) Fire arm injury on the left
arm below the elbow and the wound of
entry was 1cm x 1cm and the exit would
was 2cm x 2cm.

(b) Fire Arm injury on the outer
aspect of the right shoulder 2cm x 4cm and
6 cm from the exit would point, there was
wound of re-entry."

8. The investigating officer, after
recording the statement of witnesses and
collecting documentary evidence, filed the
charge-sheet on 05.10.2017 against the
accused-appellants
Amanveer
Singh,
Karam Singh, Ranjeet Kaur, Gurpawan
Kaur, Banta @ Beant Singh, Nabi Ahmad,
Farookh and Rizwan in the court of C.J.M,
Rampur.

9. The case was committed to the
Court of Sessions on 03.05.2019. The trial
court framed charges against the accused
appellants. The accused-appellants denied
charges and claimed trial. The prosecution,
to prove its case, has produced 16
witnesses.

10. ur is an injured witness who has
been examined as PW-2, whereas Doctor
Paramjeet Singh, who treated the injured
Gurmeet Kaur, has been examined as PW5. Doctor D.V. Singh, who conducted the
post-mortem of the deceased Jaspal Singh
has been examined as PW-6. Doctor Shiv
Mohan Kamal who conducted the autopsy
of the deceased Jaspal Kaur has been
examined as PW-8. Dr. Gyanendra Gupta
who treated the deceased Jaspal Singh at
Ganga Sheel Hospital has been examined
as PW-12. Rest of the witnesses are police
witnesses.

11. After recording of the evidences,
the accused-appellants were confronted
with the incriminating evidences put forth
against them under Section 313 Cr.P.C. and
trial court found sufficient evidence, to
convict
the
accused-appellants
(1)
Amanveer Singh, (2) Karam Singh, (3)
Ranjeet Kaur, (4) Gurpawan Kaur, (5)
Banta @ Beant Singh, (6) Nabi Ahmad, (7)
Farookh, and (8) Rizwan for the offences
under Sections 147, 148, 452, 307/149,
302/149 and 506 I.P.C.

12. Accused-appellants Amanveer
Singh and Karam Singh had been acquitted
from the charge punishable under Section
25 Arms Act.

13.

Shri
Raghuvansh
Mishra,
appearing for accused-appellants Nabi
Ahmad, Rizwan, Farookh, Ranjeet Kaur
and Gurpawan Kaur submits that there are
major contradictions in the statements of
eye witnesses PW-1, PW-2 and CW-1
being interested and partisan witnesses. He
further urged that there were multiple
versions of the alleged incident. The police
has conducted botched up investigation and
falsely implicated the accused-appellants.
He further submits that in the FIR, it was
alleged that Amanveer Singh, Nabi Ahmad
and Farookh had fired at Jaspal Singh and
caused grievous injuries to him whereas
during trial it has come that Karam Singh
and Amanveer Singh have committed
murder of Jaspal Singh. The presence of
PW-3 is doubtful and he was placed under
suspension. The police produced CCTV
footage but intentionally did not comply
with the requirements of 65-B of The
Indian Evidence Act with ulterior motives.
The ocular testimony is contrary to the
728 INDIAN LAW REPORTS ALLAHABAD SERIES
medical evidence. The revenue officer was
present at the time of the incident but was
not
examined
during
the
trial.
No
incriminating article was recovered from
accused-appellants' possession, and the FIR
is ante-time. The accused-appellants were
on bail during trial and have not violated
the terms of bail.

14. Learned counsel appearing for
accused-appellant Banta @ Beant Singh
submits that as per the entire evidence, it is
apparent that the role of causing firearm
injury has been assigned to co-accused
Amanveer Singh and Nabia @ Nabi
Ahmad as well as Farookh. Despite that,
the accused-appellant has been falsely
implicated in this case while levelling the
allegation
of
exhortation,
which
is
absolutely false and baseless. The appellant
was not present at the time of the incident,
and his name was arrayed because of
previous enmity. He further urged that,
basically, it was a land dispute between the
informant's family and accused Karam
Singh's family, whereas the accusedappellant has absolutely no role. And he is
a poor person. The accused-appellant has
been languishing in jail since 05.08.2022,
was on bail during the trial, and has not
violated the terms of bail. The sentence
awarded against the accused-appellant is
too severe, and even otherwise, the
impugned judgment and order suffers from
manifest error in law and is highly perverse
in nature. Hence, it is likely that the order
would be set aside by this Hon'ble Court,
and the appeal would succeed.

15. Shri Rajeev Lochan Shukla,
appearing for accused-appellants Amanveer
Singh and Karam Singh submits that the
prosecution case is inconsistent on the
place and the manner in which the
prosecution alleges the offence. There is a
substantial improvement and contradiction
in the statement of PW-1, PW-2 and CW-1.
The presence of eye witnesses is doubtful.
The prosecution has failed miserably to
prove its case beyond a reasonable doubt.
The investigation of the case was not
conducted fairly by the investigating officer
and in a casual manner. Charge-sheet has
been filed
without
collecting
cogent
evidence against the accused-appellants.
There are multiple versions of the alleged
incident, and police have not conducted the
investigation in a fair and transparent
manner. In the FIR, no role of causing
injury has been assigned to accused Karam
Singh, Ranjeet Kaur, Gurpawan Kaur and
Banta @ Beant Singh, whereas during the
trial, it has come in the testimony of
witnesses that accused Amanveer Singh
and Karam Singh have murdered Jaspal
Singh. The accused, Rizwan was not
named in the FIR. He further submits that
PW-1 and PW-2 reside in Punjab, and their
presence at the place of the incident is
highly doubtful. PW-2 is a divorcee and
resides with her sister in Punjab. The
prosecution has withheld this fact for the
reasons best known to them. Dr. S.N.
Naidu,
who
conducted
the
medical
examination of PW-2, was not produced by
the prosecution during the trial.

16. Learned counsel further urged that
PW-2 was deliberately taken to the private
hospital for preparation of a false medical
report, and deceased Jaspal Singh was also
taken there, but subsequently, he was
shifted to Gangasheel Hospital, and no
reference slip has been produced by the
prosecution to this effect. The presence of
PW-3 is also highly doubtful as his name
was neither mentioned as an attendant in
the medical examination report nor was his
presence endorsed by PW-5 at the hospital.
The CCTV footage, whose description has
11 All. Nabi Ahmad Vs. State of U.P.
729
also come in the FIR, has not been proved
during the trial. The prosecution has failed
to produce a certificate mandated under
section 65-B of the Indian Evidence Act.
He further submits that Balwant Singh,
who is the son of deceased Jaspal Singh,
was not produced by the prosecution, who
is alleged to be an eye witness of the
incident. The revenue officer, who was
present at the time of the demarcation of
land and claimed to have an independent
witness,
was
not
produced
by
the
prosecution. The participation of accused
Ranjit Kaur and accused Gurpawan Kaur
being
the
female
members,
in
the
commissioning of the crime, is highly
improbable and doubtful. He further
submits that no active role has been
assigned to the accused Ranjeet Kaur and
Gurpawan
Kaur
in
the
FIR.
The
prosecution has not proved the recovery of
firearms made from the accused Amanveer
Singh and Karam Singh. The FIR is antetime, and the veracity of the prosecution
case is highly doubtful inasmuch as
medical evidence is completely diffracted
from the prosecution version. There is a
material inconsistency between the ocular
and medical evidence in this regard. It is
further submitted that ocular evidence must
prevail unless medical and direct evidence
completely renders the prosecution story
unbelievable.

17. Per contra, learned A.G.A. and
counsel for the informant submit that two
persons have been murdered in broad
daylight, and the entire episode has been
captured in the CCTV camera. The accused
and complainant are decadent of a common
ancestor.
The
father
of
complainant
Sukhwinder Singh and Karam Singh are
real brothers, and there is previous
litigation pending between them. It is
admitted case that on a fateful day, the
police officials and Patwari had come for
the demarcation of land, and litigation was
pending to this effect before the court. It is
also admitted that the brother of the
complainant was murdered two and half
years prior to the date of the incident, and
the trial is pending before the trial court. So
far as the modus operandi of the
commissioning of crime is concerned, it is
proved beyond a reasonable doubt. The
testimony of the injured PW-1 daughter
and PW-2 mother is consistent, and there is
no reason for the trial court to disbelieve
their testimony. PW-2 suffered a severe
injury on her body. Injured Gurmeet Kaur
was examined as PW-2, who is also an eye
witness to the incident. She suffered
firearm injuries on the right shoulder and
on the left elbow; PW-5 Dr. Paramjeet
Singh, has duly proved her injuries. There
is no reason for the prosecution to
disbelieve the statement of PW-2, who lost
her daughter at the young age of 28 years.
The complainant has lost her maternal
uncle Jaspal Singh and her real sister. The
complainant had lost his brother two and
half years ago. The entire crime scene is
captured
in
CCTV
camera,
so
the
prosecution has no reason to depose falsely
against her cousin, father's brother and
aunt. On perusal of the trial court judgment,
it is reflected that the statements of PW-1
and PW-2 are consistent and prima facie
trustworthy and reliable.

18. Learned A.G.A., as well as
counsel for the complainant, has further
submitted that accused-appellant Nabi
Ahmad has a criminal history of four cases;

(i). Case Crime No. 183 of 1994,
under Section 60 of Excise Act,

(ii). Case Crime No. 207 of 1999,
under Section 3 of U.P. Goonda Act, (iii).
730 INDIAN LAW REPORTS ALLAHABAD SERIES
Case Crime No. 532 of 2002, under
Sections 308, 504, 506 I.P.C. and (iv). Case
Crime No. 31 of 2008, under Section 110 G
of Cr.P.C., all registered at Police Station
Bilaspur, District Rampur.

It
is
further
submitted
that
accused Amanveer Singh and Karam Singh
had been in jail during the trial.

19. After hearing learned counsel for
the appellants, learned A.G.A. for the State
and learned counsel for the informant, and
perusal of the record, it transpires that it is
admitted position that two persons have
been murdered in broad daylight and the
entire crime scene was captured in CCTV
camera, even though the CCTV footage has
not been proved in the absence of the
requirement of Section 65-B of the Indian
Evidence Act but was produced before the
trial court. The trial court has dealt with the
CCTV camera footage at page 50 of the
impugned judgment in the following
manner:-

"The informant, in her Tahrir
paper Exhibit Ka-1, has ascribed to the fact
that the incident was recorded in CCTV but
the investigating officer PW-13 Ajay
Kumar did not collect the same nor made
any attempt towards such collection and
validation.
The
CCTV
footage
was
provided to PW-14 Sunil Ahlawat by the
informant
during
the
course
of
investigation and the same has been proved
as
Exhibit
Ka-32
but
no
recovery
memorandum of the same was prepared
nor was it sealed and no attempt was made
seize the cameras installed around the
place of occurrence to have the contents of
CCTV footage technically verified to
ascertain truth. In absence of technical
verification report of the CCTV footage
and accompanying certification under
s.65B Indian Evidence Act, 1872, the CCTV
footage cannot be relied upon."

20. The twin set of arguments are
placed before this court to seek suspension
of sentence by the counsel for accusedappellant;

(I) The accused-appellants Nabi
Ahmad, Banta @ Beant Singh, Rizwan,
Farookh, Ranjeet Kuar and Gurpawan Kaur
were on bail during the trial, so they are
entitled to be released on bail postconviction.

(ii) The accused-appellants are
entitled to the benefit of non-production of
a certificate issued under Section 65-B of
the Indian Evidence Act to prove the
contents of CCTV as it is fatal to the
prosecution case and renders the order of
conviction prima facie erroneous.

21. Before we proceed to decide the
application for suspension of sentence on
merits; it's safe to avert to the legal
position.

22. As observed by Apex Court in
Preet Pal Singh vs. State of U.P.1, there is
a difference between the grant of bail under
Section 439 of the CrPC in case of pre-trial
arrest and suspension of sentence under
Section 389(1) of the CrPC and grant of
bail, post-conviction. In the earlier case,
there may be a presumption of innocence,
which is a fundamental postulate of
criminal jurisprudence; the courts may take
a liberal view depending on the facts and
circumstances of the case, whereas in the
case of post-conviction bail, there is a
finding of guilt against the accused persons
and the question of presumption of
conviction does not arise. The Court
considering an application for suspension
of sentence and grant of bail is to consider
11 All. Nabi Ahmad Vs. State of U.P.
731
the prima facie merits of the appeal,
coupled with other factors. There should be
strong and compelling reasons for the grant
of bail, and strong, compelling reasons
must be recorded in the order granting bail.

23. The discretion under Section
389(1) Cr.P.C., is to be exercised judicially,
and this court is obliged to consider
whether the accused has a strong likelihood
to succeed in the appeal, and there is no
unreasonable delay in disposal of the
appeal, as held by Supreme Court in
Kashmira Singh v. State of Punjab2 and
Babu Singh and Ors. v. State of U.P.3

24. In Kalyan Chandra Sarkar v.
Rajesh Ranjan and Anr4, the Hon'/ble
Supreme Court has held-

"11. The law in regard to grant
or refusal of bail is very well settled. The
Court granting bail should exercise its
discretion in a judicious manner and not as
a matter of course. Though at the stage of
granting bail a detailed examination of
evidence and elaborate documentation of
the merits of the case need not be
undertaken, there is a need to indicate in
such orders reasons for prima facie
concluding why bail was being granted
particularly where the accused is charged
of having committed a serious offence. Any
order devoid of such reasons would suffer
from non-application of mind."

25.

Even
though
a
detailed
examination of the merits of the case may
not be required by the courts while
considering the application for bail, but at
the same time, the exercise of discretion
has to be based on well-settled principles
and in a judicious manner, and not as a
matter of course as held by Apex Court in
Chaman Lal v. State of U.P. and Anr5.

26. The Hon'ble Supreme Court, in
the catena of judgments, has held that even
though detailed examination of evidence
and detailed documentation of merits of the
case may not be required at the time of
suspension of the sentence but the appellate
court is duty-bound to objectively assess
the matter and record the reasons for its
conclusion and for deciding the application
under section 389 (1) Cr.P.C.

27. Hon'ble Supreme Court in Preet
Pal Singh (supra) has held as under:-

"35.
There
is
a
difference
between grant of bail under Section 439 of
the CrPC in case of pre-trial arrest and
suspension of sentence under Section 389
of the CrPC and grant of bail, post
conviction. In the earlier case there may be
presumption of innocence, which is a
fundamental
postulate
of
criminal
jurisprudence, and the courts may be
liberal, depending on the facts and
circumstances of the case, on the principle
that bail is the rule and jail is an exception,
as held by this Court in Dataram Singh v.
State of U.P. and Anr. (supra). However, in
case of post conviction bail, by suspension
of operation of the sentence, there is a
finding of guilt and the question of
presumption of innocence does not arise.
Nor is the principle of bail being the rule
and jail an exception attracted, once there
is conviction upon trial. Rather, the Court
considering an application for suspension
of sentence and grant of bail, is to consider
the prima facie merits of the appeal,
coupled with other factors. There should be
strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the
order granting bail, as mandated in Section
389(1) of the Cr.P.C.
732 INDIAN LAW REPORTS ALLAHABAD SERIES

28. In considering an application for
suspension of sentence, the Appellate Court
is only to examine if there is a such patent
infirmity in the order of conviction that
renders the order of conviction prima facie
erroneous. Where there is evidence that the
Trial Court has considered, it is not open to
a Court considering an application under
Section 389(1) Cr.P.C. to re-assess and/or
re-analyze the same evidence and take a
different view, to suspend the execution of
the sentence and release the convict on
bail."

29. In Kishorij Lal v. Rupa and
Others6; Hon'ble Supreme Court has
curled out the following principle:-

"6. The mere fact that during the
trial, they were granted bail and there was
no allegation of misuse of liberty, is really
not of much significance. The effect of bail
granted during trial loses significance
when on completion of trial, the accused
persons have been found guilty. The mere
fact that during the period when the
accused persons were on bail during trial
there was no misuse of liberties, does not
per se warrant suspension of execution of
sentence and grant of bail. What really was
necessary to be considered by the High
Court is whether reasons existed to
suspend the execution of sentence and
thereafter grant bail. The High Court does
not seem to have kept the correct principle
in view.

8. In Vijay Kumar v. Narendra
7and Ramji Prasad v. Rattan Kumar
Jaiswal8 it was held by this Court that in
cases involving conviction under Section
302 IPC, it is only in exceptional cases that
the benefit of suspension of sentence can be
granted. The impugned order of the High
Court does not meet the requirement. In
Vijay Kumar case, it was held that in
considering the prayer for bail in a case
involving a serious offence like murder
punishable under Section 302 IPC, the
court should consider the relevant factors
like the nature of accusation made against
the accused, the manner in which the crime
is alleged to have been committed, the
gravity of the offence, and the desirability
of releasing the accused on bail after they
have been convicted for committing the
serious offence of murder. These aspects
have not been considered by the High
Court, while passing the impugned order".

30. In Preet Pal Singh (supra), a
distinction has been drawn between the
grant of bail under Section 439 Cr.P.C. in
pre-trial arrest and suspension of sentence
under Section 389(1) Cr.P.C. and the grant
of bail, post-conviction. In the earlier case,
there may be a presumption of innocence,
which is a fundamental postulate of
criminal jurisprudence, and the courts may
take a liberal approach, depending on the
facts and circumstances, on the principle
that bail is the rule and jail is an exception
as held by Hon'ble Supreme Court in Data
Ram Singh Vs. State of U.P.9 However, in
the case of post-conviction bail, there is a
definite finding of guilt against the accused
persons, and no question of presumption of
innocence does arise, nor the principle of
bail being the rule and the jail is an
exception is attracted. Rather, the court
shall actively take a prima facie view on
the merits of the appeal coupled with other
factors, and there should be strong and
compelling reasons for the grant of bail.
The relevant portion of the judgment of
Preet Pal Singh (Supra) is extracted
hereinbelow:-

"35.
There
is
a
difference
between grant of bail under Section 439
11 All. Nabi Ahmad Vs. State of U.P.
733
CrPC in case of pre-trial arrest and
suspension of sentence under Section 389
CrPC and grant of bail, post conviction. In
the earlier case, there may be presumption
of innocence, which is a fundamental
postulate of criminal jurisprudence, and
the courts may be liberal, depending on the
facts and circumstances of the case, on the
principle that bail is the rule and jail is an
exception, as held by this Court in Dataram
Singh v.State of U.P. [Dataram Singh v.
State of U.P., (2018) 3 SCC 22 : (2018) 1
SCC (Cri) 675] However, in case of postconviction bail, by suspension of operation
of the sentence, there is a finding of guilt
and the question of presumption of
innocence does not arise. Nor is the
principle of bail being the rule and jail an
exception
attracted,
once
there
is
conviction upon trial. Rather, the court
considering an application for suspension
of sentence and grant of bail, is to consider
the prima facie merits of the appeal,
coupled with other factors. There should be
strong compelling reasons for grant of bail,
notwithstanding an order of conviction, by
suspension of sentence, and this strong and
compelling reason must be recorded in the
order granting bail, as mandated in Section
389(1) CrPC.

31. Returning back to the case in
hand, as discussed in the preceding para, it
is established during the trial that accused
Amanveer Singh, along with accused Nabi
Ahmad and accused Karam Singh caused
grievous
injuries
to
complainant
Sharandeep Kaur, who has been examined as
PW-1 and her mother Gurmeet Kaur (PW-2).
Both the witnesses are witnesses of fact and are
injured. It is admitted position that in a broad day
shoot-out case, Jaspal Kaur died on the spot due to
a gun-shot injury, and Jaspal Singh succumbed to
a gun-shot injury, the next day in the Hospital. The
entire crime scene was captured on CCTV.

31.1. The counsel for the accused
appellants could not demonstrate any patent
infirmity in the order of conviction that renders the
order of conviction prima facie erroneous. It is not
open to this court to reassess and /or reanalyze the
evidence and take a different view for disposal of
the application under Section 389(1) Cr.P.C.

31.2. The accuse-appellant Amanveer
Singh is also involved in FIR No.432 of 2022
registered under Section 3/25 Arms Act at P.S.
Bilaspur, District Rampur and F.I.R. No.725 of
2017 under Section 325/323/427 IPC at P.S.
Bilaspur, District Rampur.

31.3. The accused-appellant Karam
Singh is also involved in FIR No.432 of 2022
registered under Section 3/25 Arms Act at P.S.
Bilaspur, District Rampur and F.I.R. No.725 of
2017 under Section 325/323/427 IPC at P.S.
Bilaspur, District Rampur.

31.4 The accused-appellant Nabi
Ahmad is also involved in half a dozen cases; the
details are as follows;

(i) F.I.R. No.116 of 2021 under
Section 147, 323, 452, 427, 504 and 506 I.P.C. at
P.S. Bilaspur, District Rampur.

(ii) FIR No.183 of 1994 under Section
60 of The Excise Act at PS Bilaspur,
District Rampur.

(iii) FIR No.207 of 1999 under
Section 3 U.P. Control of Goonda Act,
1970.

(iv) FIR No.532 of 2002 U/S 308,
504, 506 IPC P.S. Bilaspur, District
Rampur.

(v) FIR No.31 of 2008 U/S 110 G
Cr.P.C. at P.S Bilaspur, District Rampur.
734 INDIAN LAW REPORTS ALLAHABAD SERIES

(vi) FIR No.120 of 2018 U/S 135,
Electricity Act, P.S. Bilaspur, District
Rampur.

31.5.
The
accused-appellant,
Rizwan is also involved in F.I.R No.116 of
2021 U/S 147, 323, 452, 427, 504, 506 IPC
at P.S Bilaspur, District Rampur. The
accused-appellant was on bail during trial
and has been languishing in jail since
05.08.2022.

31.6.
The
accused-appellant
Ranjit Kaur is also involved in FIR No.725
of 2017 U/S 325, 323, 327 IPC at P.S.
Bilaspur, District Rampur and FIR no.180
of 2018 U/S 325 and 506 IPC at P.S.
Bilaspur, District Rampur. The accusedappellant was on bail during trial and has
been languishing in jail since 05.08.2022.

31.7
The
accused-appellant
Gurpawan Kuar is also involved in FIR
No.186 of 2018 U/S 323, 506 IPC at P.S.
Bilaspur, District Rampur. The accusedappellant was on bail during trial and has
been languishing in jail since 05.08.2022.
The accused-appellant is a young lady of
age 31 years.

31.8 The accused-appellant Banta
Singh @ Beant Singh was on bail during
trial and has been languishing in jail since
05.08.2022 and reportedly had no criminal
history.

31.9.
The
accused-appellant
Farookh is also involved in FIR No.120 of
2018 U/S 135 Electricity Act, at P.S
Bilaspur, District Rampur. The accusedappellant was on bail during trial and has
been languishing in jail since 05.08.2022.

32. Considering the fact that no role
has been assigned to the accused-appellant
Gurpawan Kaur and Ranjit Kaur in the FIR
and in the statement of PW-1 and PW-2,
the accused-appellants are stated to have
Kirpan, otherwise also no injury is found
on the deceased and injured which could be
inflicted
from
Kirpan.
The
accusedappellants, being the ladies, are also
entitled to the benefit of Section 437
Cr.P.C. The accused-appellant, Gurpawan
Kaur, is a young lady with entire life ahead
of her, whereas the accused-appellant,
Ranjit Kaur, is nearly touching 60 years
and no purpose will be served by keeping
both the accused-appellants in jail during
the pendency of the appeal. Therefore, their
sentence is suspended till the pendency of
the appeal.

33. The sentence awarded vide order
dated 05.08.2022 is suspended till the
pendency of appeal qua accused-appellant
Banta Singh @ Beant Singh, Farookh and
Rizwan, considering that their names are
not figured in the FIR. Their involvement is
revealed in the supplementary statement of
the complainant. Moreover, no specific role
has been assigned to both the accusedappellants in the testimony of injured
witnesses
PW-1
and
PW-2.
As
a
consequence
thereof,
the
accusedappellants are released on bail.

34. There are specific findings against
the accused-appellants Amanveer Singh,
Karam Singh and Nabi Ahmad. The
accused, Amanveer Singh, shot dead Jaspal
Kaur on the spot and severely injured
Jaspal Singh, who succumbed to injuries
the next day in the hospital. The weapon of
the offence has been recovered on the
pointing
out
of
accused-appellants
Amanveer Singh and Karam Singh. The
injured eye witness PW-2 Gurmeet Kaur
had specifically named accused-appellants
Amanveer Singh and Karam Singh shot at
11 All. Raees & Ors. Vs. State of U.P. & Anr.
735
deceased
Jaspal
Singh,
whereas
complainant Sharandeep Kaur, who is
examined as PW-1 has also categorically
stated that accused Amanveer Singh and
his father Karam Singh shot at deceased
Jaspal Singh. The name of accusedappellant Nabi Ahmad has also figured in
the testimony of PW-1 and PW-2. There
are specific findings qua accused-appellant
Nabi Ahmad entered into the house of the
complainant along with convict Amanveer
Singh and Karam Singh. The accusedappellant Nabi Ahmad is involved in six
cases of heinous nature registered at P.S.
Bilaspur, District Rampur, whereas convict
Amanveer Singh and Karam Singh are
involved
in
two
more
cases
each.
Considering the macabre nature of the
crime wherein two people were shot dead
in broad daylight, it would be in the interest
of justice to dismiss the application for
suspension of sentence of the accusedappellants,
namely
Amanveer
Singh,
Karam
Singh
and
Nabi
Ahmad,
consequently bail application of convict
Amanveer Singh, Karam Singh and Nabi
Ahmad are dismissed.

35.

The
accused-appellants-
Gurpawan Kaur, Ranjit Kaur, Banta @
Beant Singh, Rizwan and Frookh be
released on bail in the above case on
furnishing a personal bond and two sureties
each in the like amount to the satisfaction
of the Chief Judicial Magistrate concerned,
subject to furnishing undertaking that they
will cooperate in the hearing of the appeal.

35.1. Fine shall be deposited by
the accused-appellants after eight weeks of
their release.

35.2. On acceptance of bail
bonds, the lower court shall transmit
photostat copies thereof to this Court for
being kept on the record of this appeal.

35.3. List this appeal along with
the paper book for the 'final hearing' in due
course.
----------
(2023) 11 ILRA 735
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.10.2023

BEFORE

THE HON'BLE SURENDRA SINGH-I, J.

Criminal Appeal No. 7437 of 2023

Raees & Ors. ...Appellants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Appellants:
Sri Sanjay Singh

Counsel for the Opposite Parties:
G.A., Sri Girish Tiwari

Criminal Law - Scheduled Castes and
Scheduled
Tribes
(Prevention
of
Atrocities) Act, 1989 - Sections 3(1)(r),
3(1)(s) - Code of Criminal Procedure,
1973 - Sections 227, 228 & 14-A(1) -
Indian Penal Code, 1860 - Sections 147,
323, 342, 406, 420, 504 & 506 - Discharge
Application - Framing of Charges - Criminal
Breach of Trust - Cheating - SC/ST Atrocities

The appellants challenged the order dated
01.05.2023 passed by the Special Judge (SC/ST
Act),
Rampur,
rejecting
their
discharge
application under Section 227 Cr.P.C. in Special
Case No. 30 of 2022, arising from Case Crime
No. 18 of 2022, under Sections 147, 420, 406,
342, 323, 504, 506 I.P.C. and Sections 3(1)(r),
3(1)(s) of the SC/ST Act. The FIR, lodged by
informant Smt. Geeta Katariya, alleged that
appellant Raees fraudulently induced her to pay
Rs. 17,10,000/- for a land sale that was not in
his name, and on 09.11.2021, Raees and co-