High Court · 2025

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri V.P. Srivastava, learned Senior counsel assisted by Ms. Neeja Srivastava, learned counsel for the applicant, Sri Rajesh Kumar Singh, learned AGA for the State-respondents as also Sri Rajeev Kumar, learned counsel for the first informant who has appeared in opposition to the bail application and perused the record.

2. The instant bail application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been moved on behalf of accused-applicant, Dhirendra Singh, seeking enlargement on bail in Case Crime No. 26 of 2024, under Sections 147, 148, 149, 307, 302, 504, 34 of I.P.C. & Section 3/25/27 Arms Act, Police Station- Jasrathpur, District- Etah during the pendency of the trial before the court below. The bail application of the applicant before the court below was rejected by the learned Sessions Judge, Etah vide order dated 01.03.2025 and the applicant has been languishing in jail since 12.07.2024.

3. Learned Senior Counsel, Sri V.P. Srivastava has argued that the FIR giving rise to the case crime number was lodged on 25.03.2024 at 20:37 hours regarding an incident stated to have occurred on the same day at 17:00 hours nominating five persons including the applicant and alleging that the first informant along with his sons Pradeep Kumar and Vinay Kumar, Rakesh Kumar S/o Late Shauk Singh and Rajiv s/o Late Jagdish Singh and other family members had gone to put Aakhet on the occasion of Holi near the place of the house of the nominated persons. As soon as they started putting Aakhet, the nominated persons who were armed with licensed 315 bore rifle, 12 bore SBBL and illegal weapons in their hands started firing with intention to kill and prevented the first informant and others from putting Aakhet and started abusing them. The applicant is stated to have shot Pradeep Kumar (son of first informant). The other persons also fired resulting in injuries to Rajiv Kumar, Vinay Kumar and Rakesh Kumar. Pradeep Kumar is stated to have succumbed to his injuries while being taken for treatment.

4. It has been argued that the FIR is ante timed inasmuch as the FIR was lodged at 20:37 hours while the inquest of the deceased (Pradeep Kumar) was carried out the next day i.e. 26.03.2024 at 13:00 hours. The inquest report does not mention the FIR/Crime Number. It has further been argued that it is a cross case arising out of a scuffle which took place on the occasion of holi festival and both sides suffered injuries. A cross FIR giving rise to Case Crime No. 0053 of 2024 under Section 147, 148, 149, 307, 323, 504 I.P.C. (pursuant to proceedings under Section 156(3) Cr.P.C.) was got registered by the Applicant's side in which the Applicant's mother Smt. Rajan Shree received gun shot injuries.

5. Learned Sr. Counsel has argued that the Investigating Officer despite having knowledge of the cross-case has not recorded statement of the opposite side and wrongly submitted chargsheet against the applicant. It has further been argued that:- "(a) injuries suffered by the applicant's side have not been explained by the prosecution and as such the prosecution is guilty of suppressing the genesis and the origin of the occurrence of the incident and has not presented the true version, the witnesses who have denied the presence of injuries are lying rendering their evidence as unreliable, the prosecution story as set up becomes doubtful. Reliance is placed upon the decision of the Apex court rendered in Lakshmi Singh and others vs. State of Bihar, reported in 1976 (4) SCC 394 as also in the case of Amarjit Singh vs. State of Haryana, reported in 2009(16) SCC 649 to buttress the above submissions. (b) The applicant who is a Constable in the U.P. Police was not present on the place of occurrence inasmuch as he was performing the duty of Prisoner warden along with another Prisoner warden, Akash Bhadauria and was assigned duty for treatment to prisoner Rajkumar w.e.f. 20.03.2024 till 26.03.2024 which stands corroborated from the statement of Prisoner warden Akash Bhadauria on record. (c) The action on the part of the applicant is in exercise of his right of private defence as is apparent from the contents of the FIR dated 18.05.2024 giving rise to Case Crime No. 0053 of 2024 registered through proceedings under Section 156(3) Cr.P.C. regarding the same incident. The persons from the side of the first informant giving rise to the Case Crime No. 26 of 2024 were clearly the aggressors."

6. It is next submitted that the applicant is innocent and has not committed the offence alleged. The criminal antecedents of the applicant have been duly explained by way of supplementary affidavit. Co-accused Harinandan alias Manoj has been released on Bail by this Court vide order dated 21.11.2024 passed in Criminal Misc. Bail Application No. 32260 of 2024. The applicant undertakes to Cooperate in the trial and shall abide by the conditions laid down by this Court if released on bail. Hence a prayer for bail is made.

7. Per contra, learned AGA as also Sri Rajeev Kumar, learned Counsel for the first informant vehemently oppose the bail application by submitting that the accused applicant and other accused persons attributed with their respective weapons as assigned in the FIR, having common intention and object came at the place of incident began to hurl abuses and started indiscriminate firing resulting in three persons suffering injuries and one person dying. The applicant has been assigned a 12 bore gun. The Ante-mortem injuries recorded on the body of the deceased are pellet injuries caused by a 12 bore gun. The applicant is not entitled to parity with co-accused, Harinandan @ Manoj inasmuch his case has been distinguished. The bail application of Ramavtar co-accused nominated with licenced rifle of 315 bore has been rejected by this court. It is not a cross case as argued from side of the applicant inasmuch as the application under Section 156(3) Cr.P.C. was moved after 24 days of the incident i.e. only on 18.04.2024 giving rise to Case Crime No. 53 of 2024 under Section 147, 148, 149, 307, 323, 504 I.P. C. in which final report has been submitted on 25.05.2024. The protest petition was allowed and the cognizance and summoning order dated 28.01.2025 have been stayed by this Court in Criminal Misc. Application No. 5481 of 2025 (Than Singh and others vs. State of U.P. and Another) vide order dated 18.03.2025. Further the injuries suffered by Smt. Rajan Shree from the side of the applicant was reported after seven days of the incident. She is stated to have suffered three injuries. Inquiry No. 1 and 2 are scabbed wound while injury no. 3 is complain of pain in different part of the body. The injury no. 1 was referred to ENT surgeon for expert opinion. X-ray was conducted on 03.04.2024 and no bony injury was found. The statement of the doctor who conducted the medical examination has stated that the injury was caused by some hard and blunt object is simple in nature and seems self inflicted. It is accordingly submitted that the bail application of the applicant deserves to be rejected.

8. Having heard the learned counsel for the parties and having perused the record, I find that the plea of alibi as argued by learned Sr. Counsel for the applicant does not inspire confidence inasmuch as Prisoner Warden, Akash Bhadauria in his statement has clearly stated that he and the applicant were on rest on 24.03.2024 and 25.03.2024 and not on duty. The duty was assigned to him and the applicant for the dates 20.03.2024, 23.03.2024 and 26.03.2024. The applicant was not with him and he did not know from where the applicant came to join his duties. The plea of alibi is accordingly rejected.

9. The Court also finds that the first informant of the case is also one of the eye witness and according to the FIR version the applicant caused fire arm injury to Pradeep Kumar (son of the informant) who succumbed to the gun shot injuries. The other nominated persons also opened fire due to which Rajeev Kumar, Vinay Kumar and Rakesh Kumar sustained injuries. On the side of the accused there is only one injured with simple injuries that too which the doctor has opined can be self inflicted. After perusal of the material on record, the Court is of the opinion that the applicant herein has clearly exceeded his right of private defence. Further the mere fact that the injuries suffered by the side of the applicant has not been explained by the prosecution cannot by itself be a sole basis to absolve the applicant of the the offence alleged.

10. The Apex Court in the case of Ram Avtar and Others vs. State of U.P. reported in 2003 (SCC(Crl.)) 1404 in para 10 of the judgment has laid down as under: "Lastly, learned Senior Counsel for the appellants faintly submits that the injuries sustained by the accused have not been explained by the prosecution, which will affect the prosecution case. The law is now well settled on this subject that where the prosecution evidence is clear, cogent and creditworthy, mere fact that injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case. As noticed above, in the instant case, the prosecution evidence is clear, cogent and creditworthy and admits no ambiguity."

11. In view of the above, no good ground is made out to release the applicant on bail. The bail application is accordingly rejected.

12. It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. Order Date :- 15.7.2025/Anjali ANJALI SHARMA High Court of Judicature at Allahabad

Hon'ble Ashutosh Srivastava,J.

1. Heard Shri V.P. Srivastava, learned Senior counsel assisted by Ms. Neeja Srivastava, learned counsel for the applicant, Sri Rajesh Kumar Singh, learned AGA for the State-respondents as also Sri Rajeev Kumar, learned counsel for the first informant who has appeared in opposition to the bail application and perused the record.

2. The instant bail application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been moved on behalf of accused-applicant, Dhirendra Singh, seeking enlargement on bail in Case Crime No. 26 of 2024, under Sections 147, 148, 149, 307, 302, 504, 34 of I.P.C. & Section 3/25/27 Arms Act, Police Station- Jasrathpur, District- Etah during the pendency of the trial before the court below. The bail application of the applicant before the court below was rejected by the learned Sessions Judge, Etah vide order dated 01.03.2025 and the applicant has been languishing in jail since 12.07.2024.

3. Learned Senior Counsel, Sri V.P. Srivastava has argued that the FIR giving rise to the case crime number was lodged on 25.03.2024 at 20:37 hours regarding an incident stated to have occurred on the same day at 17:00 hours nominating five persons including the applicant and alleging that the first informant along with his sons Pradeep Kumar and Vinay Kumar, Rakesh Kumar S/o Late Shauk Singh and Rajiv s/o Late Jagdish Singh and other family members had gone to put Aakhet on the occasion of Holi near the place of the house of the nominated persons. As soon as they started putting Aakhet, the nominated persons who were armed with licensed 315 bore rifle, 12 bore SBBL and illegal weapons in their hands started firing with intention to kill and prevented the first informant and others from putting Aakhet and started abusing them. The applicant is stated to have shot Pradeep Kumar (son of first informant). The other persons also fired resulting in injuries to Rajiv Kumar, Vinay Kumar and Rakesh Kumar. Pradeep Kumar is stated to have succumbed to his injuries while being taken for treatment.

4. It has been argued that the FIR is ante timed inasmuch as the FIR was lodged at 20:37 hours while the inquest of the deceased (Pradeep Kumar) was carried out the next day i.e. 26.03.2024 at 13:00 hours. The inquest report does not mention the FIR/Crime Number. It has further been argued that it is a cross case arising out of a scuffle which took place on the occasion of holi festival and both sides suffered injuries. A cross FIR giving rise to Case Crime No. 0053 of 2024 under Section 147, 148, 149, 307, 323, 504 I.P.C. (pursuant to proceedings under Section 156(3) Cr.P.C.) was got registered by the Applicant's side in which the Applicant's mother Smt. Rajan Shree received gun shot injuries.

5. Learned Sr. Counsel has argued that the Investigating Officer despite having knowledge of the cross-case has not recorded statement of the opposite side and wrongly submitted chargsheet against the applicant. It has further been argued that:- "(a) injuries suffered by the applicant's side have not been explained by the prosecution and as such the prosecution is guilty of suppressing the genesis and the origin of the occurrence of the incident and has not presented the true version, the witnesses who have denied the presence of injuries are lying rendering their evidence as unreliable, the prosecution story as set up becomes doubtful. Reliance is placed upon the decision of the Apex court rendered in Lakshmi Singh and others vs. State of Bihar, reported in 1976 (4) SCC 394 as also in the case of Amarjit Singh vs. State of Haryana, reported in 2009(16) SCC 649 to buttress the above submissions. (b) The applicant who is a Constable in the U.P. Police was not present on the place of occurrence inasmuch as he was performing the duty of Prisoner warden along with another Prisoner warden, Akash Bhadauria and was assigned duty for treatment to prisoner Rajkumar w.e.f. 20.03.2024 till 26.03.2024 which stands corroborated from the statement of Prisoner warden Akash Bhadauria on record. (c) The action on the part of the applicant is in exercise of his right of private defence as is apparent from the contents of the FIR dated 18.05.2024 giving rise to Case Crime No. 0053 of 2024 registered through proceedings under Section 156(3) Cr.P.C. regarding the same incident. The persons from the side of the first informant giving rise to the Case Crime No. 26 of 2024 were clearly the aggressors."

6. It is next submitted that the applicant is innocent and has not committed the offence alleged. The criminal antecedents of the applicant have been duly explained by way of supplementary affidavit. Co-accused Harinandan alias Manoj has been released on Bail by this Court vide order dated 21.11.2024 passed in Criminal Misc. Bail Application No. 32260 of 2024. The applicant undertakes to Cooperate in the trial and shall abide by the conditions laid down by this Court if released on bail. Hence a prayer for bail is made.

7. Per contra, learned AGA as also Sri Rajeev Kumar, learned Counsel for the first informant vehemently oppose the bail application by submitting that the accused applicant and other accused persons attributed with their respective weapons as assigned in the FIR, having common intention and object came at the place of incident began to hurl abuses and started indiscriminate firing resulting in three persons suffering injuries and one person dying. The applicant has been assigned a 12 bore gun. The Ante-mortem injuries recorded on the body of the deceased are pellet injuries caused by a 12 bore gun. The applicant is not entitled to parity with co-accused, Harinandan @ Manoj inasmuch his case has been distinguished. The bail application of Ramavtar co-accused nominated with licenced rifle of 315 bore has been rejected by this court. It is not a cross case as argued from side of the applicant inasmuch as the application under Section 156(3) Cr.P.C. was moved after 24 days of the incident i.e. only on 18.04.2024 giving rise to Case Crime No. 53 of 2024 under Section 147, 148, 149, 307, 323, 504 I.P. C. in which final report has been submitted on 25.05.2024. The protest petition was allowed and the cognizance and summoning order dated 28.01.2025 have been stayed by this Court in Criminal Misc. Application No. 5481 of 2025 (Than Singh and others vs. State of U.P. and Another) vide order dated 18.03.2025. Further the injuries suffered by Smt. Rajan Shree from the side of the applicant was reported after seven days of the incident. She is stated to have suffered three injuries. Inquiry No. 1 and 2 are scabbed wound while injury no. 3 is complain of pain in different part of the body. The injury no. 1 was referred to ENT surgeon for expert opinion. X-ray was conducted on 03.04.2024 and no bony injury was found. The statement of the doctor who conducted the medical examination has stated that the injury was caused by some hard and blunt object is simple in nature and seems self inflicted. It is accordingly submitted that the bail application of the applicant deserves to be rejected.

8. Having heard the learned counsel for the parties and having perused the record, I find that the plea of alibi as argued by learned Sr. Counsel for the applicant does not inspire confidence inasmuch as Prisoner Warden, Akash Bhadauria in his statement has clearly stated that he and the applicant were on rest on 24.03.2024 and 25.03.2024 and not on duty. The duty was assigned to him and the applicant for the dates 20.03.2024, 23.03.2024 and 26.03.2024. The applicant was not with him and he did not know from where the applicant came to join his duties. The plea of alibi is accordingly rejected.

9. The Court also finds that the first informant of the case is also one of the eye witness and according to the FIR version the applicant caused fire arm injury to Pradeep Kumar (son of the informant) who succumbed to the gun shot injuries. The other nominated persons also opened fire due to which Rajeev Kumar, Vinay Kumar and Rakesh Kumar sustained injuries. On the side of the accused there is only one injured with simple injuries that too which the doctor has opined can be self inflicted. After perusal of the material on record, the Court is of the opinion that the applicant herein has clearly exceeded his right of private defence. Further the mere fact that the injuries suffered by the side of the applicant has not been explained by the prosecution cannot by itself be a sole basis to absolve the applicant of the the offence alleged.

10. The Apex Court in the case of Ram Avtar and Others vs. State of U.P. reported in 2003 (SCC(Crl.)) 1404 in para 10 of the judgment has laid down as under: "Lastly, learned Senior Counsel for the appellants faintly submits that the injuries sustained by the accused have not been explained by the prosecution, which will affect the prosecution case. The law is now well settled on this subject that where the prosecution evidence is clear, cogent and creditworthy, mere fact that injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence and consequently the whole case. As noticed above, in the instant case, the prosecution evidence is clear, cogent and creditworthy and admits no ambiguity."

11. In view of the above, no good ground is made out to release the applicant on bail. The bail application is accordingly rejected.

12. It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order. Order Date :- 15.7.2025/Anjali ANJALI SHARMA High Court of Judicature at Allahabad