High Court · 2025

3. FIR of the present case was lodged on 24.07.2023 against applicant and his father by his bhabhi and according to the FIR, on

24.07.2023 at about 10:40 in the morning some dispute arose between applicant, his father and his brother i.e. husband of the informant and on the exhortation of his father, he committed the murder of his brother i.e. husband of the informant by causing fire- arm injuries to him.

4. Learned counsel for the applicant submits that applicant is the real brother of the deceased and on the basis of false allegation, he has been made accused in the present matter.

5. He further submits that however, from the FIR, it reflects, apart from the informant, sister of the applicant and even his mother were also present at spot but surprisingly during investigation neither their statements were recorded nor they made witnesses in the charge-sheet.

6. He further submits that however, from the charge-sheet, it reflects that during investigation I.O. introduced two new eye- witnesses namely Suhail, the brother of the informant and Naeemullah and this fact clearly suggests that actually applicant has not committed the alleged crime and informant on the basis of false allegation implicated him in the present matter alongwith his father.

7. He further submits that even from the facts of the case, it reflects that it was a case of sudden provocation as suddenly during dispute applicant opened fire due to which deceased died.

8. He further submits that in the FIR informant categorically stated that after the incident the neighbors admitted her husband in the hospital where he died and his dead-body has been kept in mortuary but from the inquest report, it reflects that the dead-body of the deceased at the time of inquest was lying in his house and this fact suggests that either informant was not present at spot at the time of real incident or she was trying to save the real culprits.

9. He further submits that even during investigation statements of any neighbors could not be recorded.

10. He further submits that entire prosecution case is solely based upon the testimony of the informant i.e. bhabhi of the applicant but considering the facts of the case, her statement and version of the FIR does not appear to be convincing.

11. He further submits that applicant is in jail in the present matter since 25.07.2023 i.e. for last more than one and half years and till date trial of the case could not be concluded.

12. He further submits that till date only six prosecution witnesses could be examined out of total 21 witnesses of the charge-sheet and therefore, it appears that trial of the case is moving with languid pace and there is no hope of its early disposal.

13. He further submits that however, apart from present case, applicant is having criminal history of one another case but that case relates to minor offences.

14. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submits that applicant is the real brother of the deceased and he committed his murder due to property dispute on the exhortation of his father and incident has been witnessed by wife of the deceased i.e. informant and there is no reason to disbelieve her testimony at this stage.

15. They further submits that however, informant in the FIR stated that during treatment her husband died and after his death, his dead-body has been kept in the mortuary but admittedly informant did not accompanied the deceased upto the hospital and even according to her, deceased was taken to the hospital by his neighbors and from the statements of the neighbors, who were also witnesses of the inquest, it reflects that when they took the deceased to the hospital then doctor declared him dead and thereafter they had taken back his dead-body to his house and therefore, in the inquest, it has been mentioned that dead-body of the deceased was kept in his house.

16. They further submits that however, in the present matter applicant is in jail for last more than one and half years but it is a case, in which, applicant committed the murder of his real brother in his house and therefore considering the peculiar facts and circumstances of the case, merely on the ground of incarceration of more than one and half years, applicant should not be released on bail.

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

18. As per allegation, applicant on the exhortation of his father committed the murder of his real brother by causing fire-arm injuries and incident has been witnessed by his bhabhi i.e. wife of the deceased, who was also informant of the case. However, learned Senior Counsel appearing on behalf of the applicant place number of arguments before this Court to demonstrate that either informant was not present at spot at the time of real incident or she was trying to save the real culprits but considering the facts of the case, at this stage, it is hard to accept the contention raised by learned Senior Counsel appearing on behalf of the applicant after discarding the testimony of the informant.

19. Further, however, applicant is in jail in the present matter since

25.07.2023 i.e. for last more than one and half years and it appears, till date only six prosecution witnesses could be examined out of total 21 witnesses of the charge-sheet but it is a case, in which, applicant committed the murder of his real brother in his house.

20. In view of this Court, there must be some balance between period of incarceration of an accused and nature of allegation levelled against him coupled with the conviction provided for alleged offences and considering these facts, this Court finds merit in the argument advanced by learned A.G.A. as well as learned counsel for the informant that in such cases, it is not proper to release the accused on bail merely on the basis of incarceration of one and half years.

21. Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is not entitled to be released on bail at this stage.

22. Accordingly, without expressing any opinion on the merits of the case, the instant bail application filed by applicant- Zaid Khan is hereby rejected.

23. 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.

24. 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 :- 18.3.2025 Zafar MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad

3. FIR of the present case was lodged on 24.07.2023 against applicant and his father by his bhabhi and according to the FIR, on

24.07.2023 at about 10:40 in the morning some dispute arose between applicant, his father and his brother i.e. husband of the informant and on the exhortation of his father, he committed the murder of his brother i.e. husband of the informant by causing fire- arm injuries to him.

4. Learned counsel for the applicant submits that applicant is the real brother of the deceased and on the basis of false allegation, he has been made accused in the present matter.

5. He further submits that however, from the FIR, it reflects, apart from the informant, sister of the applicant and even his mother were also present at spot but surprisingly during investigation neither their statements were recorded nor they made witnesses in the charge-sheet.

6. He further submits that however, from the charge-sheet, it reflects that during investigation I.O. introduced two new eye- witnesses namely Suhail, the brother of the informant and Naeemullah and this fact clearly suggests that actually applicant has not committed the alleged crime and informant on the basis of false allegation implicated him in the present matter alongwith his father.

7. He further submits that even from the facts of the case, it reflects that it was a case of sudden provocation as suddenly during dispute applicant opened fire due to which deceased died.

8. He further submits that in the FIR informant categorically stated that after the incident the neighbors admitted her husband in the hospital where he died and his dead-body has been kept in mortuary but from the inquest report, it reflects that the dead-body of the deceased at the time of inquest was lying in his house and this fact suggests that either informant was not present at spot at the time of real incident or she was trying to save the real culprits.

9. He further submits that even during investigation statements of any neighbors could not be recorded.

10. He further submits that entire prosecution case is solely based upon the testimony of the informant i.e. bhabhi of the applicant but considering the facts of the case, her statement and version of the FIR does not appear to be convincing.

11. He further submits that applicant is in jail in the present matter since 25.07.2023 i.e. for last more than one and half years and till date trial of the case could not be concluded.

12. He further submits that till date only six prosecution witnesses could be examined out of total 21 witnesses of the charge-sheet and therefore, it appears that trial of the case is moving with languid pace and there is no hope of its early disposal.

13. He further submits that however, apart from present case, applicant is having criminal history of one another case but that case relates to minor offences.

14. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submits that applicant is the real brother of the deceased and he committed his murder due to property dispute on the exhortation of his father and incident has been witnessed by wife of the deceased i.e. informant and there is no reason to disbelieve her testimony at this stage.

15. They further submits that however, informant in the FIR stated that during treatment her husband died and after his death, his dead-body has been kept in the mortuary but admittedly informant did not accompanied the deceased upto the hospital and even according to her, deceased was taken to the hospital by his neighbors and from the statements of the neighbors, who were also witnesses of the inquest, it reflects that when they took the deceased to the hospital then doctor declared him dead and thereafter they had taken back his dead-body to his house and therefore, in the inquest, it has been mentioned that dead-body of the deceased was kept in his house.

16. They further submits that however, in the present matter applicant is in jail for last more than one and half years but it is a case, in which, applicant committed the murder of his real brother in his house and therefore considering the peculiar facts and circumstances of the case, merely on the ground of incarceration of more than one and half years, applicant should not be released on bail.

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

18. As per allegation, applicant on the exhortation of his father committed the murder of his real brother by causing fire-arm injuries and incident has been witnessed by his bhabhi i.e. wife of the deceased, who was also informant of the case. However, learned Senior Counsel appearing on behalf of the applicant place number of arguments before this Court to demonstrate that either informant was not present at spot at the time of real incident or she was trying to save the real culprits but considering the facts of the case, at this stage, it is hard to accept the contention raised by learned Senior Counsel appearing on behalf of the applicant after discarding the testimony of the informant.

19. Further, however, applicant is in jail in the present matter since

25.07.2023 i.e. for last more than one and half years and it appears, till date only six prosecution witnesses could be examined out of total 21 witnesses of the charge-sheet but it is a case, in which, applicant committed the murder of his real brother in his house.

20. In view of this Court, there must be some balance between period of incarceration of an accused and nature of allegation levelled against him coupled with the conviction provided for alleged offences and considering these facts, this Court finds merit in the argument advanced by learned A.G.A. as well as learned counsel for the informant that in such cases, it is not proper to release the accused on bail merely on the basis of incarceration of one and half years.

21. Therefore, considering the facts and circumstances of the case, discussed above, in my view, applicant is not entitled to be released on bail at this stage.

22. Accordingly, without expressing any opinion on the merits of the case, the instant bail application filed by applicant- Zaid Khan is hereby rejected.

23. 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.

24. 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 :- 18.3.2025 Zafar MOHAMMAD ZAFAR ANSARI High Court of Judicature at Allahabad