Judgment

Mr. Harsh Bunger, J. :-

CRM-18607-2023

The present application is filed for placing on record Annexure A-1 to Annexure A-3. For the reasons mentioned in the application, the same is allowed and Annexures A-1 to A-3 are taken on record, subject to all just exceptions.

CRM-M-13241-2023

Petitioner (Sharafat Ali) has filed the instant petition under Section 439 of the Code of Criminal Procedure seeking grant of regular bail in case FIR No.08 dated 09.01.2021 registered under Section 34 6 of the INDIAN PENAL CODE (deleted later on) and Sections 302 , 364, 120-B, 201 read with Section 34 of the INDIAN PENAL CODE (added later on) at Police Station Gandhi Nagar, District Yamuna Nagar.

2. Upon issuance of notice, reply dated 18.04.2023 by way of affidavit of Rajiv Kumar, H.P.S., Deputy Superintendent of Police, Yamuna Nagar on behalf of respondent/State of Haryana has been filed by the learned State counsel which is already on record.

3. Custody certificate dated 13.05.2023 of the petitioner has been filed by learned State counsel in the Court, which was taken on record vide order dated 15.05.2023.

4. Briefly, the aforesaid case FIR was registered on the complaint of one Ashraf son of Yakub, wherein it has been alleged that his younger brother-Azim son of Yakub was working at G.K. Medical Store, Yamuna Nagar and on 07.01.2021 at 08:00 in the morning, his brother went to his work on his motorcycle bearing No. HR-02Z-4863 (Mark Splendor), however, he has not come back home till that day (09.01.2021). It was stated that his brother had gone from home without informing and his mobile phone (8930260637) is stated to have switched off. After describing the features of his brother, it was stated that his brother be searched and appropriate action be taken. On the basis of the aforesaid complaint, the abovesaid case FIR No.08 dated 09.01.2021 (Annexure P-1) was initially registered under Section 346 of the INDIAN PENAL CODE .

5. As per the reply, after registration of the aforesaid case, missing Azim was searched at different places, however, he was not found. It is stated that on 19.02.2021, complainant-Ashraf had come to Police Station, Gandhi Nagar and he gave a DVD containing his conversation with some woman regarding his brother-Azim along with a certificate under Section 65-B of the Evidence Act, which was taken into police possession. The complainant-Ashraf is stated to have recorded his supplementary statement that on 16.01.2021 at about 01:20 P.M, he received a call on his mobile No.9528621642 from another mobile No.9354408681. The women who had made call had told that his brother-Azim was with her and she was under age and that they will return within 2-3 months after performing marriage. In the supplementary statement, it was stated by the complainant that despite requesting several times, the said woman did not allow him to talk to his brother, however, he had recorded the conversation in his mobile. When the complainant again made a phone call on the said mobile number then a boy picked up the call and told that he is a street vendor in Saraswa and one man and woman had come to him and on the asking of the woman, he has given his mobile to her for making a phone call, which she made after going at some distance from him and he does not know as to whom she made phone call and thereafter, she went away. As per the complainant, after hearing the recorded phone call repeatedly, he was sure that the voice was that of Asha Rani, a friend of Sharafat and phone call was made by her at the instance of Sharafat, who had beaten his brother-Azim about 5-6 years ago on account of the fact that Azim used to tease his neice (bhanji) Nashreen.

As per the reply, Sharafat Ali (petitioner), Ishrara @ Bhura and Aadil were arrested on the basis of the supplementary statement of the complainant and upon interrogation they disclosed that they had killed Azim and threw his body in Yamuna canal with his motorcycle. As per the reply, the dead body of Azi