High Court · 2025

Applicant :- Banne Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A.,Anuj Dayal,Yogeshwar Sharan Srivastava Hon'ble Rajesh Singh Chauhan,J. 1). Heard Shri Manoj Kumar Singh, learned counsel for the applicant, Shri Bhanu Pratap Singh, learned AGA for the State and Shri Anuj Dayal and Shri Yogeshwar Sharan Srivastava, who have filed their vakalatnama on behalf of the complainant and the same is taken on record. 2). The present applicant is in jail since 05.03.2025, in case crime no. 58 of 2025, under Sections 191(2), 191(3), 103(1), 109, 3(5), 351(3), 61(2) of BNS at Police Station Hujoorpur District Bahraich. 3). Learned counsel for the applicant has stated that the present applicant has been falsely implicated as he has not committed any offence as alleged. 4). Attention has been drawn towards impugned First Information Report, wherein, the allegations of beating and assault through sword, spade (phavda), gupthi and knife have been levelled. Beating the victim (since deceased) attributed to 12 named accused persons and 4 to 5 unknown persons. As per the prosecution story so narrated in the First Information Report, one accused Sagir and Shakeela caught hold the brother of the informant Israel (since deceased) and the present applicant had stabbed him, resultant thereof he died. Learned counsel for the applicant has drawn attention of this Court towards the statement of the informant (Annexure No. 2) recorded under Section 161, wherein, he has stated that one co- accused Shakeela caught hold his brother and co-accused Sagir attacked upon the brother through spade on his head and other accused persons have attacked upon him through the aforesaid weapons. The present applicant stabbed the deceased through knife, resultant thereof, the brother of the informant died. 5). At this stage Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure no. 7, which is a postmortem report where the ante-mortem injuries have been indicated, which reads as under:-

1. Lacerated wound 1.0x0.5 cm X Muscle deep present over left side of chest, 3.5 cm from left nipple.

2. Contusion 4x2.5 cm present over left temporo occipital region of skull, 5 cm above from left ear.

3. Left ear pinna lacerated and some part missing.

4. Contusion 7x4 cm present over right temporoparital region of skull, 4.5 cm above from right ear. 6). The cause of death has been explained as 'ante-mortem head injury'. 7). Thereafter, Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure Nos. 13, 14, 15 and 16, which are the statement of independent witnesses namely, Islamuddin son of Kallu, Zakir son of Chotey, Salaam son of Lallan and Mohammed Jamil son of Bhallu who have stated that out of those aforesaid accused persons who are named in the First Information Report, someone has attacked on the head of the deceased through spade, resultant thereof, the victim (since deceased) fell down on the earth and succumbed to such head injury. 8). On being confronted by the police while recording the statement under Section 161 of the aforesaid independent witnesses regarding presence of the present applicant, all have stated that they have not seen that the present applicant had stabbed the victim and they are not sure as to whether the present applicant was present on the spot or not. However, Annexure Nos. 17 and 18 is the statement of other witnesses who are not independent witnesses, namely, Nasrudin son of Habib and Ehsan son of Mubarak, who have stated that the brother of the informant was caught hold by co-accused Sagir and Shakeela and the present applicant stabbed on the chest of the victim, resultant thereof, he died, therefore, Shri Manoj Kumar Singh has stated that there are contradictions between the statement of independent eye witnesses and other witnesses as argued above. Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure No. 31, which is a complete charge-sheet, showing the findings and observation of the Investigating Officer where the Investigating Officer has categorically stated that from the perusal of the CDR/CCTV footage of the incident dated 01.03.2025, the presence of the present applicant was found at Mahurikala Eet Bhatta but he was regularly in touch with the accused person and was instructing them to kill the victim (since deceased) on account of village rivalry as the present applicant is the present Village Pradhan, whereas the complainant was erstwhile Gram Pradhan and brother of the complainant has been killed by the co- accused persons. Therefore, the present applicant has been implicated in the present case invoking Section 61(2) of BNS (120-B of IPC). 9). Shri Manoj Kumar Singh has therefore submitted that if the present applicant was not present on the spot at the time of incident in question, the prosecution story that he had stabbed the deceased is misconceived and he has been implicated only on account of village rivalry between both the parties. Thereafter, Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure Nos. 28, 29 and 30, which are the bail orders of co-accused, Asraf, Abrar and Sagir who have been granted by this Court vide order dated 09.05.2025, 12.05.2025 and 29.05.2025 in Criminal Misc. Bail Application Nos. 4024 of 2025, 4066 of 2025 and 4860 of 2025, respectively. He has also shown the copy of bail order granted by this Court in favour of one another accused Aftab vide order dated 27.06.2025 in Criminal Misc. Bail Application No. 5741 of 2025 and the same is taken on record. The accused Asraf was having lathi and co-accused Sagir was having spade. 10). Shri Manoj Kumar Singh has submitted that even if the statement of independent eye witnesses is taken on its face value, then one fact would be emerged that co-accused Sagir had assaulted on the head of the victim through spade and the cause of death is ante-mortem head injury, therefore, the accused who assaulted fatal injury is Sageer who has been granted bail. 11). Shri Manoj Kumar Singh has also submitted that all the aforesaid bail applications except the bail application of Sagir have been opposed by the learned AGA as well as the learned counsel for the informant. However, the bail of Sagir has been opposed by the learned AGA only. Therefore, as per Shri Manoj Kumar Singh, as to who has assaulted the fatal injury upon the victim would be determined during the course of trial but, prima facie, on the basis of statement of independent eye witnesses, it is co-accused Sageer who assaulted on the head of the victim through spade and cause of death is ante-mortem head injury. Therefore, considering the facts and circumstances and also granting parity to the present applicant with the other co-accused persons, he may be enlarged on bail. 12). Shri Manoj Kumar Singh has drawn attention of this Court towards paragraph 57 whereby the criminal history of six cases of the present applicant has been explained. If the present applicant is enlarged on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail and shall cooperate in the trial proceedings. 13). Per contra, learned AGA as well as Shri Yogeshwar Sharan Srivastava has vehemently opposed the present application by submitting that all other co-accused persons who have been granted bail for the reason that the main accused person was Banne, the present applicant, therefore the present applicant may not seek parity with those accused persons. Shri Srivastava has further submitted that even if the observation of Investigating Officer, while filing charge-sheet is taken on its face value, it has been categorically indicated in the charge- sheet that though Banne was not present at the spot at the time of incident, but he was the main conspirator and planner, and he was having a specific motive and intention to kill the informant and his brother. Fortunately, the informant was saved, but his brother died on account of ante-mortem injuries. Shri Srivastava has also submitted that the statement of independent witnesses and other witnesses and finding of Investigating Officer while filing charge-sheet, create doubt in the prosecution story and the aforesaid fact can be ascertained during the course of trial inasmuch as at this stage, it cannot be said that the present applicant had not stabbed the victim (since deceased). Therefore, Shri Srivastav has stated that the present bail application may be dismissed for the reason that the present applicant is a main accused having a specific motive intention. 14). However, learned AGA submitted on the basis of instructions that the present applicant was not present on the spot at the time of incident, but he was actively involved through cell phone, instructing the other accused persons to eliminate the complainant and his brother. 15). Without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that the present applicant is languishing in jail since 05.03.2025; this Court has granted bail to the co-accused, namely, Asraf, Abrar and Sagir vide order dated 09.05.2025, 12.05.2025 and 29.05.2025 in Criminal Misc. Bail Application Nos. 4024 of 2025, 4066 of 2025 and 4860 of 2025 as well as one another accused Aftab vide order dated 27.06.2025 in Criminal Misc. Bail Application No. 5741 of 2025; there is no likelihood to conclude the trial in the near future; and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail. 16). The bail application is allowed. 17). Let the applicant- Banne, be released on bail in the aforesaid case crime number on his 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 file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly. Order Date :- 4.7.2025 Anurag . (Rajesh Singh Chauhan,J.) ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench

Applicant :- Banne Opposite Party :- State Of U.P. Thru. Prin. Secy. Home Lko. Counsel for Applicant :- Manoj Kumar Singh Counsel for Opposite Party :- G.A.,Anuj Dayal,Yogeshwar Sharan Srivastava Hon'ble Rajesh Singh Chauhan,J. 1). Heard Shri Manoj Kumar Singh, learned counsel for the applicant, Shri Bhanu Pratap Singh, learned AGA for the State and Shri Anuj Dayal and Shri Yogeshwar Sharan Srivastava, who have filed their vakalatnama on behalf of the complainant and the same is taken on record. 2). The present applicant is in jail since 05.03.2025, in case crime no. 58 of 2025, under Sections 191(2), 191(3), 103(1), 109, 3(5), 351(3), 61(2) of BNS at Police Station Hujoorpur District Bahraich. 3). Learned counsel for the applicant has stated that the present applicant has been falsely implicated as he has not committed any offence as alleged. 4). Attention has been drawn towards impugned First Information Report, wherein, the allegations of beating and assault through sword, spade (phavda), gupthi and knife have been levelled. Beating the victim (since deceased) attributed to 12 named accused persons and 4 to 5 unknown persons. As per the prosecution story so narrated in the First Information Report, one accused Sagir and Shakeela caught hold the brother of the informant Israel (since deceased) and the present applicant had stabbed him, resultant thereof he died. Learned counsel for the applicant has drawn attention of this Court towards the statement of the informant (Annexure No. 2) recorded under Section 161, wherein, he has stated that one co- accused Shakeela caught hold his brother and co-accused Sagir attacked upon the brother through spade on his head and other accused persons have attacked upon him through the aforesaid weapons. The present applicant stabbed the deceased through knife, resultant thereof, the brother of the informant died. 5). At this stage Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure no. 7, which is a postmortem report where the ante-mortem injuries have been indicated, which reads as under:-

1. Lacerated wound 1.0x0.5 cm X Muscle deep present over left side of chest, 3.5 cm from left nipple.

2. Contusion 4x2.5 cm present over left temporo occipital region of skull, 5 cm above from left ear.

3. Left ear pinna lacerated and some part missing.

4. Contusion 7x4 cm present over right temporoparital region of skull, 4.5 cm above from right ear. 6). The cause of death has been explained as 'ante-mortem head injury'. 7). Thereafter, Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure Nos. 13, 14, 15 and 16, which are the statement of independent witnesses namely, Islamuddin son of Kallu, Zakir son of Chotey, Salaam son of Lallan and Mohammed Jamil son of Bhallu who have stated that out of those aforesaid accused persons who are named in the First Information Report, someone has attacked on the head of the deceased through spade, resultant thereof, the victim (since deceased) fell down on the earth and succumbed to such head injury. 8). On being confronted by the police while recording the statement under Section 161 of the aforesaid independent witnesses regarding presence of the present applicant, all have stated that they have not seen that the present applicant had stabbed the victim and they are not sure as to whether the present applicant was present on the spot or not. However, Annexure Nos. 17 and 18 is the statement of other witnesses who are not independent witnesses, namely, Nasrudin son of Habib and Ehsan son of Mubarak, who have stated that the brother of the informant was caught hold by co-accused Sagir and Shakeela and the present applicant stabbed on the chest of the victim, resultant thereof, he died, therefore, Shri Manoj Kumar Singh has stated that there are contradictions between the statement of independent eye witnesses and other witnesses as argued above. Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure No. 31, which is a complete charge-sheet, showing the findings and observation of the Investigating Officer where the Investigating Officer has categorically stated that from the perusal of the CDR/CCTV footage of the incident dated 01.03.2025, the presence of the present applicant was found at Mahurikala Eet Bhatta but he was regularly in touch with the accused person and was instructing them to kill the victim (since deceased) on account of village rivalry as the present applicant is the present Village Pradhan, whereas the complainant was erstwhile Gram Pradhan and brother of the complainant has been killed by the co- accused persons. Therefore, the present applicant has been implicated in the present case invoking Section 61(2) of BNS (120-B of IPC). 9). Shri Manoj Kumar Singh has therefore submitted that if the present applicant was not present on the spot at the time of incident in question, the prosecution story that he had stabbed the deceased is misconceived and he has been implicated only on account of village rivalry between both the parties. Thereafter, Shri Manoj Kumar Singh has drawn attention of this Court towards Annexure Nos. 28, 29 and 30, which are the bail orders of co-accused, Asraf, Abrar and Sagir who have been granted by this Court vide order dated 09.05.2025, 12.05.2025 and 29.05.2025 in Criminal Misc. Bail Application Nos. 4024 of 2025, 4066 of 2025 and 4860 of 2025, respectively. He has also shown the copy of bail order granted by this Court in favour of one another accused Aftab vide order dated 27.06.2025 in Criminal Misc. Bail Application No. 5741 of 2025 and the same is taken on record. The accused Asraf was having lathi and co-accused Sagir was having spade. 10). Shri Manoj Kumar Singh has submitted that even if the statement of independent eye witnesses is taken on its face value, then one fact would be emerged that co-accused Sagir had assaulted on the head of the victim through spade and the cause of death is ante-mortem head injury, therefore, the accused who assaulted fatal injury is Sageer who has been granted bail. 11). Shri Manoj Kumar Singh has also submitted that all the aforesaid bail applications except the bail application of Sagir have been opposed by the learned AGA as well as the learned counsel for the informant. However, the bail of Sagir has been opposed by the learned AGA only. Therefore, as per Shri Manoj Kumar Singh, as to who has assaulted the fatal injury upon the victim would be determined during the course of trial but, prima facie, on the basis of statement of independent eye witnesses, it is co-accused Sageer who assaulted on the head of the victim through spade and cause of death is ante-mortem head injury. Therefore, considering the facts and circumstances and also granting parity to the present applicant with the other co-accused persons, he may be enlarged on bail. 12). Shri Manoj Kumar Singh has drawn attention of this Court towards paragraph 57 whereby the criminal history of six cases of the present applicant has been explained. If the present applicant is enlarged on bail, he shall abide by all terms and conditions of the bail order and shall not misuse the liberty of bail and shall cooperate in the trial proceedings. 13). Per contra, learned AGA as well as Shri Yogeshwar Sharan Srivastava has vehemently opposed the present application by submitting that all other co-accused persons who have been granted bail for the reason that the main accused person was Banne, the present applicant, therefore the present applicant may not seek parity with those accused persons. Shri Srivastava has further submitted that even if the observation of Investigating Officer, while filing charge-sheet is taken on its face value, it has been categorically indicated in the charge- sheet that though Banne was not present at the spot at the time of incident, but he was the main conspirator and planner, and he was having a specific motive and intention to kill the informant and his brother. Fortunately, the informant was saved, but his brother died on account of ante-mortem injuries. Shri Srivastava has also submitted that the statement of independent witnesses and other witnesses and finding of Investigating Officer while filing charge-sheet, create doubt in the prosecution story and the aforesaid fact can be ascertained during the course of trial inasmuch as at this stage, it cannot be said that the present applicant had not stabbed the victim (since deceased). Therefore, Shri Srivastav has stated that the present bail application may be dismissed for the reason that the present applicant is a main accused having a specific motive intention. 14). However, learned AGA submitted on the basis of instructions that the present applicant was not present on the spot at the time of incident, but he was actively involved through cell phone, instructing the other accused persons to eliminate the complainant and his brother. 15). Without entering into merits of the issue, considering the arguments of learned counsel for the parties; contents and allegations of the FIR and the fact that the present applicant is languishing in jail since 05.03.2025; this Court has granted bail to the co-accused, namely, Asraf, Abrar and Sagir vide order dated 09.05.2025, 12.05.2025 and 29.05.2025 in Criminal Misc. Bail Application Nos. 4024 of 2025, 4066 of 2025 and 4860 of 2025 as well as one another accused Aftab vide order dated 27.06.2025 in Criminal Misc. Bail Application No. 5741 of 2025; there is no likelihood to conclude the trial in the near future; and undertaking of the applicant that he shall cooperate in the trial proceedings and shall not misuse the liberty of bail, I find it appropriate to release the applicant on bail. 16). The bail application is allowed. 17). Let the applicant- Banne, be released on bail in the aforesaid case crime number on his 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 file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code. (iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) Before parting with, it is expected that the trial shall be concluded with expedition, strictly in accordance with law, without adjourning the case for any unnecessary reason. Further, the learned trial court may take all coercive measures, as per law, if either of the parties do not co-operate in the trial properly. Order Date :- 4.7.2025 Anurag . (Rajesh Singh Chauhan,J.) ANURAG SINGH High Court of Judicature at Allahabad, Lucknow Bench