High Court

2. Heard Sri Kailash Choudhary, learned counsel for the applicant and Sri Manav Chaurasia, learned AGA for the State.

3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 474 of 2024, under Sections 103(1) B.N.S., Police Station Chauri Chaura, District Gorakhpur during pendency of the trial.

4. FIR of the present case was lodged on 08.09.2024 against applicant and according to the FIR in the night of 7/8.09.2024 father-in-law of the informant was sleeping on the roof and in the night at about 12.00 AM applicant after going on the terrace made assault upon him through sharp edge weapon due to which his throat was cut. It is further mentioned in the FIR that after the incident father-in-law of the informant after coming down from the roof informed about the incident and fainted and when he was taken to the hospital then doctor declared him dead.

5. Learned counsel for the applicant submits, however, applicant is named in the FIR but admittedly there is no eye witness account and it reflects, entire prosecution case is based on the information given by the deceased before his death.

6. He further submits, as per allegation, while deceased was sleeping upon the roof, applicant cut his throat and thereafter he came down and informed the informant about the incident and died but from the perusal of the post mortem report of the deceased, which has been annexed along with instant bail application, it reflects, he sustained incised wound of the size 5cm horizontally placed over left side of neck 6cm above left clavicle, margin clean cut with edges everted underneath trachea punctured and on opening trachea clotted blood present, therefore, from the post mortem, it reflects, trachea of the deceased was found punctured .

7. He next submits, during investigation when the statement of autopsy surgeon was recorded, which has been annexed at page-7 of the supplementary affidavit filed in support of instant bail application, then he also stated that the trachea of the deceased was cut and considering this fact, it was not possible for the deceased to came down from the roof and informed about the incident to the informant as he was not in a position even to speak.

8. He placed reliance on the Modi's A Textbook of Medical Jurisprudence and Toxicology 23rd Edition and submits, as per Modi, in the case of a wound of the larynx, speech is possible, if the wound is above the vocal cords, even if it is gaping. However, in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible.

9. He next submits, however, as per prosecution, through CDR, it reflects, presence of the applicant was found near the place of incident after and before the incident and applicant also had conversation with the daughter of the deceased but as according to the prosecution he was having illicit relationship with the daughter of the deceased, therefore, if he had conversation with the daughter of the deceased and his location was found near the place, then it is not a clinching circumstance against the applicant.

10. He further submits, applicant is not having any criminal history and in the present matter he is in jail since 08.09.2024 i.e. for last more than six months.

11. Per contra, learned AGA opposed the prayer for bail but could not dispute the fact that except the fact that deceased himself informed the informant about the incident there is no eye witness account. Learned AGA however further submitted, presence of the applicant was found through his CDR near the place of incident and before and after the incident he had conversation with the daughter of the deceased but could not dispute the fact that as per prosecution applicant was having illicit relationship with the daughter of the deceased.

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

13. However, as per allegation, applicant committed the murder of the deceased by cutting his throat and as per prosecution this fact was himself disclosed by the deceased before his death to the informant but post mortem report suggests that deceased sustained serious incised wound through sharp edge weapon and due to the incised wound his trachea was found punctured.

14. Further, considering the injury sustained by the deceased and statement of the doctor recorded during investigation, who conducted the autopsy of the deceased and Modi's Medical Jurisprudence, the argument advanced by learned counsel for the applicant that after sustaining such injuries, it was impossible for the deceased to came down from the roof and informed about the incident to the informant as after sustaining such injuries he could not even speak, cannot be ruled out at this stage.

15. Further, however, as per prosecution through CDR of the applicant his presence was found near the place of incident and he had several conversation with the daughter of the deceased before and after the death of the deceased but as according to the prosecution itself applicant was having illicit relationship with the daughter of the deceased, therefore, this Court finds merit in the argument advanced by learned counsel for the applicant that both the above facts, cannot be treated as clinching circumstance against the applicant at this stage. Further, considering the fact that even as per prosecution applicant was having illicit relationship with the daughter of deceased the possibility of his false implication can also be not completely brushed aside.

16. Further, applicant is not having any criminal history and in the present matter he is in jail since 08.09.2024 i.e. for last more than six months.

17. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

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

19. Let the applicant - Dharmendra Sharma @ Golu Sharma 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.

20. 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.

21. 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 :- 11.4.2025 AK Pandey

2. Heard Sri Kailash Choudhary, learned counsel for the applicant and Sri Manav Chaurasia, learned AGA for the State.

3. The instant bail application has been filed seeking release of the applicant on bail in Case Crime No. 474 of 2024, under Sections 103(1) B.N.S., Police Station Chauri Chaura, District Gorakhpur during pendency of the trial.

4. FIR of the present case was lodged on 08.09.2024 against applicant and according to the FIR in the night of 7/8.09.2024 father-in-law of the informant was sleeping on the roof and in the night at about 12.00 AM applicant after going on the terrace made assault upon him through sharp edge weapon due to which his throat was cut. It is further mentioned in the FIR that after the incident father-in-law of the informant after coming down from the roof informed about the incident and fainted and when he was taken to the hospital then doctor declared him dead.

5. Learned counsel for the applicant submits, however, applicant is named in the FIR but admittedly there is no eye witness account and it reflects, entire prosecution case is based on the information given by the deceased before his death.

6. He further submits, as per allegation, while deceased was sleeping upon the roof, applicant cut his throat and thereafter he came down and informed the informant about the incident and died but from the perusal of the post mortem report of the deceased, which has been annexed along with instant bail application, it reflects, he sustained incised wound of the size 5cm horizontally placed over left side of neck 6cm above left clavicle, margin clean cut with edges everted underneath trachea punctured and on opening trachea clotted blood present, therefore, from the post mortem, it reflects, trachea of the deceased was found punctured .

7. He next submits, during investigation when the statement of autopsy surgeon was recorded, which has been annexed at page-7 of the supplementary affidavit filed in support of instant bail application, then he also stated that the trachea of the deceased was cut and considering this fact, it was not possible for the deceased to came down from the roof and informed about the incident to the informant as he was not in a position even to speak.

8. He placed reliance on the Modi's A Textbook of Medical Jurisprudence and Toxicology 23rd Edition and submits, as per Modi, in the case of a wound of the larynx, speech is possible, if the wound is above the vocal cords, even if it is gaping. However, in a wound of the larynx below the vocal cords, and in that of the trachea, no speech is possible.

9. He next submits, however, as per prosecution, through CDR, it reflects, presence of the applicant was found near the place of incident after and before the incident and applicant also had conversation with the daughter of the deceased but as according to the prosecution he was having illicit relationship with the daughter of the deceased, therefore, if he had conversation with the daughter of the deceased and his location was found near the place, then it is not a clinching circumstance against the applicant.

10. He further submits, applicant is not having any criminal history and in the present matter he is in jail since 08.09.2024 i.e. for last more than six months.

11. Per contra, learned AGA opposed the prayer for bail but could not dispute the fact that except the fact that deceased himself informed the informant about the incident there is no eye witness account. Learned AGA however further submitted, presence of the applicant was found through his CDR near the place of incident and before and after the incident he had conversation with the daughter of the deceased but could not dispute the fact that as per prosecution applicant was having illicit relationship with the daughter of the deceased.

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

13. However, as per allegation, applicant committed the murder of the deceased by cutting his throat and as per prosecution this fact was himself disclosed by the deceased before his death to the informant but post mortem report suggests that deceased sustained serious incised wound through sharp edge weapon and due to the incised wound his trachea was found punctured.

14. Further, considering the injury sustained by the deceased and statement of the doctor recorded during investigation, who conducted the autopsy of the deceased and Modi's Medical Jurisprudence, the argument advanced by learned counsel for the applicant that after sustaining such injuries, it was impossible for the deceased to came down from the roof and informed about the incident to the informant as after sustaining such injuries he could not even speak, cannot be ruled out at this stage.

15. Further, however, as per prosecution through CDR of the applicant his presence was found near the place of incident and he had several conversation with the daughter of the deceased before and after the death of the deceased but as according to the prosecution itself applicant was having illicit relationship with the daughter of the deceased, therefore, this Court finds merit in the argument advanced by learned counsel for the applicant that both the above facts, cannot be treated as clinching circumstance against the applicant at this stage. Further, considering the fact that even as per prosecution applicant was having illicit relationship with the daughter of deceased the possibility of his false implication can also be not completely brushed aside.

16. Further, applicant is not having any criminal history and in the present matter he is in jail since 08.09.2024 i.e. for last more than six months.

17. Therefore, considering the facts and circumstances of the case discussed above, in my view, applicant is entitled to be released on bail.

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

19. Let the applicant - Dharmendra Sharma @ Golu Sharma 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.

20. 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.

21. 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 :- 11.4.2025 AK Pandey