High Court · 2025

1. As both the bail applications arise from the same FIR therefore, both are being disposed of by common order.

2. Counter affidavit filed by the State in both bail applications are taken on record.

3. Sri Ajay Kumar Pandey, Advocate states that he has filed his power on behalf of applicants but his name has not been shown in the cause list

4. Heard Sri Ajay Kumar Pandey, learned counsel for the applicants and Sri Ashutosh Singh, learned AGA for the State.

5. The instant bail application has been filed seeking release of the applicants on bail in Case Crime No.197 of 2024, under Sections 115 (2), 108 B.N.S., Police Station Fariha, District Firozabad during pendency of the trial.

6. FIR of the present case was lodged on 12.10.2024 against applicants under Sections 115 (2), 109 (1) B.N.S and according to the FIR on 11.10.2024 at 7:00 p.m. in the evening when father of the informant had gone to make demand of his money from the applicants then they after pouring petrol upon him ablazed him due to which he sustained serious burn injuries and has been admitted to the hospital.

7. Learned counsel for the applicant submits initially FIR of the present case was lodged under Sections 115 (2), 109 (1) B.N.S but after the death of the deceased case was converted under section 108 BNS.

8. He further submits that however on the record there is dying declaration of the deceased recorded by the doctor concerned and in the dying declaration he stated that both the applicants ablazed him after pouring petrol upon him but he further stated that the son of applicant Bhagwati namely Baba Yadav caught hold him but during entire investigation it could not be found that applicant Bhagwati was having any such son namely Baba Yadav.

9. He further submits, even there is no certificate of the doctor on record about the condition of the deceased whether he was in a position to give his dying declaration or not and therefore from above reasons alleged dying declaration of deceased appears to be doubtful.

10. He further submits, during investigation investigating officer recorded the statements of number of eye witnesses and their statements have been annexed along with the instant bail application and from its perusal it reflects that deceased actually committed suicide by pouring petrol upon him and on the basis of statements of eye witnesses charge-sheet against the applicants was filed only under section 108 BNS and statements of these witnessed also belie the alleged dying declaration of deceased.

11. He further submits there is no evidence of abetment against the applicants on record.

12. He further submits applicant Bhagwati is 73 years old and in the present matter applicants are in jail since 29.11.2024.

13. Per contra, learned AGA opposed the prayer for bail and submitted that dying declaration of the deceased recorded by the doctor is on record in which he categorically stated that applicants ablazed him and if under some confusion he disclosed wrong name of one accused then no benefit can be extended to the applicants as deceased categorically stated against them. He further submits, at this stage dying declaration of the deceased cannot be disbelieved.

14. Learned AGA further submits however from the statements of the eye witnesses it reflects that deceased himself ablazed him but statements of eye witnesses cannot prevail over the dyeing declaration of the deceased.

15. He further submits applicant Bhagwati according to his instruction is about 60 years of age and therefore considering the totality and circumstances of the case applicants should not be released on bail.

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

17. As per allegation made in the FIR applicants ablazed the deceased and deceased also in his dying declaration recorded by the doctor stated that they ablazed him however, during investigation when the investigating officer recorded the statements of some alleged eye witnesses then they stated that actually deceased committed suicide by pouring petrol upon him but this court finds merit in the argument advanced by learned AGA that at this stage the statements of alleged eye witnesses cannot be prevailed over the dying declaration of the deceased.

18. Further however there is no fitness certificate of the deceased on record but as dying declaration was recorded by the doctor therefore merely on this ground at this stage dying declaration of the deceased cannot be discarded.

19. Further however applicant has been challaned for offence under section 108 BNS but it reflects that on the basis of the statements of eye witnesses investigating officer drawn a conclusion that actually it is a case of suicide but from the dying declaration of deceased it appears actually it is a case of murder under section 103 BNS. The law is settled the opinion of the investigating officer is not binding upon this court. Therefore, considering the facts and circumstances of the case discussed above, I am not inclined to release the applicant on bail at this stage.

20. Accordingly, the instant bail application filed on behalf of applicant is rejected.

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 :- 6.2.2025/Neeraj NEERAJ KUMAR SINGH High Court of Judicature at Allahabad

1. As both the bail applications arise from the same FIR therefore, both are being disposed of by common order.

2. Counter affidavit filed by the State in both bail applications are taken on record.

3. Sri Ajay Kumar Pandey, Advocate states that he has filed his power on behalf of applicants but his name has not been shown in the cause list

4. Heard Sri Ajay Kumar Pandey, learned counsel for the applicants and Sri Ashutosh Singh, learned AGA for the State.

5. The instant bail application has been filed seeking release of the applicants on bail in Case Crime No.197 of 2024, under Sections 115 (2), 108 B.N.S., Police Station Fariha, District Firozabad during pendency of the trial.

6. FIR of the present case was lodged on 12.10.2024 against applicants under Sections 115 (2), 109 (1) B.N.S and according to the FIR on 11.10.2024 at 7:00 p.m. in the evening when father of the informant had gone to make demand of his money from the applicants then they after pouring petrol upon him ablazed him due to which he sustained serious burn injuries and has been admitted to the hospital.

7. Learned counsel for the applicant submits initially FIR of the present case was lodged under Sections 115 (2), 109 (1) B.N.S but after the death of the deceased case was converted under section 108 BNS.

8. He further submits that however on the record there is dying declaration of the deceased recorded by the doctor concerned and in the dying declaration he stated that both the applicants ablazed him after pouring petrol upon him but he further stated that the son of applicant Bhagwati namely Baba Yadav caught hold him but during entire investigation it could not be found that applicant Bhagwati was having any such son namely Baba Yadav.

9. He further submits, even there is no certificate of the doctor on record about the condition of the deceased whether he was in a position to give his dying declaration or not and therefore from above reasons alleged dying declaration of deceased appears to be doubtful.

10. He further submits, during investigation investigating officer recorded the statements of number of eye witnesses and their statements have been annexed along with the instant bail application and from its perusal it reflects that deceased actually committed suicide by pouring petrol upon him and on the basis of statements of eye witnesses charge-sheet against the applicants was filed only under section 108 BNS and statements of these witnessed also belie the alleged dying declaration of deceased.

11. He further submits there is no evidence of abetment against the applicants on record.

12. He further submits applicant Bhagwati is 73 years old and in the present matter applicants are in jail since 29.11.2024.

13. Per contra, learned AGA opposed the prayer for bail and submitted that dying declaration of the deceased recorded by the doctor is on record in which he categorically stated that applicants ablazed him and if under some confusion he disclosed wrong name of one accused then no benefit can be extended to the applicants as deceased categorically stated against them. He further submits, at this stage dying declaration of the deceased cannot be disbelieved.

14. Learned AGA further submits however from the statements of the eye witnesses it reflects that deceased himself ablazed him but statements of eye witnesses cannot prevail over the dyeing declaration of the deceased.

15. He further submits applicant Bhagwati according to his instruction is about 60 years of age and therefore considering the totality and circumstances of the case applicants should not be released on bail.

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

17. As per allegation made in the FIR applicants ablazed the deceased and deceased also in his dying declaration recorded by the doctor stated that they ablazed him however, during investigation when the investigating officer recorded the statements of some alleged eye witnesses then they stated that actually deceased committed suicide by pouring petrol upon him but this court finds merit in the argument advanced by learned AGA that at this stage the statements of alleged eye witnesses cannot be prevailed over the dying declaration of the deceased.

18. Further however there is no fitness certificate of the deceased on record but as dying declaration was recorded by the doctor therefore merely on this ground at this stage dying declaration of the deceased cannot be discarded.

19. Further however applicant has been challaned for offence under section 108 BNS but it reflects that on the basis of the statements of eye witnesses investigating officer drawn a conclusion that actually it is a case of suicide but from the dying declaration of deceased it appears actually it is a case of murder under section 103 BNS. The law is settled the opinion of the investigating officer is not binding upon this court. Therefore, considering the facts and circumstances of the case discussed above, I am not inclined to release the applicant on bail at this stage.

20. Accordingly, the instant bail application filed on behalf of applicant is rejected.

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 :- 6.2.2025/Neeraj NEERAJ KUMAR SINGH High Court of Judicature at Allahabad