High Court

3. FIR of the present case was lodged on 22.12.2022 against applicant and Abida Bano and according to FIR, applicant was having illicit relationship with co-accused Abida Bano, who is wife of brother of the informant and on 21.12.2022 at about 8:00 p.m. in the evening applicant and co-accused made assault through axe and wooden stick upon the head of the brother of the informant due to which he sustained serious injuries and when he was taken to the hospital then doctor declared him dead.

4. Learned counsel for the applicant submitted that from the FIR and from the statement of the informant recorded during investigation, it could not be reflected that he was the eye-witness of the incident and it appears that as according to him, applicant was having illicit relationship with co-accused Abida Bano i.e. his bhabhi, therefore, he implicated the applicant and her in the present case.

5. He further submitted that however, during investigation, four persons claimed themselves to be eye-witnesses and they stated that applicant caused axe injury on the head of the deceased but from their statements also it reflects that they were the chance witnesses and they also could not witness the real incident and as informant earlier had already disclosed the name of the applicant and co-accused Abida Bano, therefore, they started making allegations against applicant after claiming themselves eye- witnesses.

6. He further submitted that all the witnesses of fact including four eye-witnesses have already been examined by the trial court, therefore, there is no chance of tampering with the prosecution evidence.

7. He further submitted that even from the post-mortem report, it reflects that deceased sustained only one incised wound and considering the nature of allegation levelled against the applicant, the possibility of sudden provocation, cannot be completely ruled out at this stage.

8. He further submitted that applicant was not having any previous criminal history however, subsequent to the present case, he has also been made accused under the provisions of U.P. Gangsters Act and he is in jail in the present matter since 22.12.2022 i.e. for last more than two years and, therefore, considering the totality of facts and circumstances of the case coupled with the long incarceration of applicant of more than two years, he should be enlarged on bail.

9. Per contra, learned AGA opposed the prayer for bail and submitted that applicant was having illicit relationship with the wife of the deceased i.e. co-accused and, therefore, he was having motive to commit his murder and at this stage, the testimony of four eye-witnesses cannot be disbelieved but could not dispute the fact that from the post-mortem report of the deceased, it reflects that he sustained only one injury on his head and applicant is in jail in the present matter for last more than two years. He further could not dispute the fact that all the witnesses of fact including four eye-witnesses have already been examined by the trial court.

10. Learned AGA however, further pointed out that apart from the present case and case under the provisions of U.P. Gangsters Act, applicant is having criminal history of one another case but he fairly conceded, that case relates to minor offence of theft.

11. I have heard learned counsel for the parties and perused the record of the case.

12. However, as per allegation, applicant was having illicit relationship with the wife of the deceased i.e. co-accused and he caused head injury to the deceased and this incident was witnessed by four eye-witnesses but from the post-mortem report, it reflects that deceased sustained only one incised wound and in the present matter, applicant is in jail since 22.12.2022 i.e. for last more than two years.

13. Further, however, apart from the present case, applicant was having previous criminal history of one another case but that case relates to minor offence. Further, however, applicant has also been made accused under the provisions of Gangsters Act but in this case, he was made accused after the present case.

14. Further, as all the witnesses of fact including four eye- witnesses have already been examined by the trial court, therefore, there is no chance of tampering with the prosecution evidence.

15. Therefore, considering the facts and circumstances of the case discussed above, particularly the long incarceration of applicant of more than two years, in my view applicant is entitled to be released on bail.

16. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

17. Let the applicant- Amar Singh be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

18. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

19. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 20.1.2025 KK Patel

3. FIR of the present case was lodged on 22.12.2022 against applicant and Abida Bano and according to FIR, applicant was having illicit relationship with co-accused Abida Bano, who is wife of brother of the informant and on 21.12.2022 at about 8:00 p.m. in the evening applicant and co-accused made assault through axe and wooden stick upon the head of the brother of the informant due to which he sustained serious injuries and when he was taken to the hospital then doctor declared him dead.

4. Learned counsel for the applicant submitted that from the FIR and from the statement of the informant recorded during investigation, it could not be reflected that he was the eye-witness of the incident and it appears that as according to him, applicant was having illicit relationship with co-accused Abida Bano i.e. his bhabhi, therefore, he implicated the applicant and her in the present case.

5. He further submitted that however, during investigation, four persons claimed themselves to be eye-witnesses and they stated that applicant caused axe injury on the head of the deceased but from their statements also it reflects that they were the chance witnesses and they also could not witness the real incident and as informant earlier had already disclosed the name of the applicant and co-accused Abida Bano, therefore, they started making allegations against applicant after claiming themselves eye- witnesses.

6. He further submitted that all the witnesses of fact including four eye-witnesses have already been examined by the trial court, therefore, there is no chance of tampering with the prosecution evidence.

7. He further submitted that even from the post-mortem report, it reflects that deceased sustained only one incised wound and considering the nature of allegation levelled against the applicant, the possibility of sudden provocation, cannot be completely ruled out at this stage.

8. He further submitted that applicant was not having any previous criminal history however, subsequent to the present case, he has also been made accused under the provisions of U.P. Gangsters Act and he is in jail in the present matter since 22.12.2022 i.e. for last more than two years and, therefore, considering the totality of facts and circumstances of the case coupled with the long incarceration of applicant of more than two years, he should be enlarged on bail.

9. Per contra, learned AGA opposed the prayer for bail and submitted that applicant was having illicit relationship with the wife of the deceased i.e. co-accused and, therefore, he was having motive to commit his murder and at this stage, the testimony of four eye-witnesses cannot be disbelieved but could not dispute the fact that from the post-mortem report of the deceased, it reflects that he sustained only one injury on his head and applicant is in jail in the present matter for last more than two years. He further could not dispute the fact that all the witnesses of fact including four eye-witnesses have already been examined by the trial court.

10. Learned AGA however, further pointed out that apart from the present case and case under the provisions of U.P. Gangsters Act, applicant is having criminal history of one another case but he fairly conceded, that case relates to minor offence of theft.

11. I have heard learned counsel for the parties and perused the record of the case.

12. However, as per allegation, applicant was having illicit relationship with the wife of the deceased i.e. co-accused and he caused head injury to the deceased and this incident was witnessed by four eye-witnesses but from the post-mortem report, it reflects that deceased sustained only one incised wound and in the present matter, applicant is in jail since 22.12.2022 i.e. for last more than two years.

13. Further, however, apart from the present case, applicant was having previous criminal history of one another case but that case relates to minor offence. Further, however, applicant has also been made accused under the provisions of Gangsters Act but in this case, he was made accused after the present case.

14. Further, as all the witnesses of fact including four eye- witnesses have already been examined by the trial court, therefore, there is no chance of tampering with the prosecution evidence.

15. Therefore, considering the facts and circumstances of the case discussed above, particularly the long incarceration of applicant of more than two years, in my view applicant is entitled to be released on bail.

16. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is allowed.

17. Let the applicant- Amar Singh be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall appear before the trial court on the dates fixed, unless his personal presence is exempted. (ii) The applicant shall not directly or indirectly, make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or any police officer or tamper with the evidence. (iii) The applicant shall not indulge in any criminal and anti-social activity.

18. In case of breach of any of the above condition, the prosecution will be at liberty to move an application before this Court for cancellation of the bail of the applicant.

19. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial. Order Date :- 20.1.2025 KK Patel