Allowed

Brijesh Kumar v. State of U.P.

Allahabad HC23 May 2023BAIL/32860/2022

Case brief

AI extract

What is this about?

Single-judge bench allowed bail for the applicant charged with murder under Section 302 IPC. The court found a prima-facie case for bail noting discrepancies regarding the place of incident and lack of motive for the applicant, but clarified that the order is confined to bail and does not affect trial merit.

What did the court decide?

Release of the applicant, Brijesh Kumar, on bail subject to a personal bond, two sureties, and conditions regarding court attendance and non-interference with witnesses.

Brijesh Kumar Vs State of U.P. — Murder and Culpable Homicide | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:113993

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Court No. - 75

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 32860 of 2022

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Applicant :- Brijesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- A.K. Singh Solanki,Pankaj Kumar Asthana Counsel for Opposite Party :- G.A.,Sushil Kumar Dubey

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Hon'ble Sanjay Kumar Singh,J.

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1- Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the first informant.

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2- The instant bail application under Section 439 of Cr.P.C. has been filed on behalf of the applicant with a prayer to release him on bail in Case Crime No. 503 of 2021, under Section 302/34 of I.P.C., Police Station-Jaswant Nagar, District-Etawah, during the pendency of trial.

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3- As per the prosecution case in brief, informantPushpendra Kumar, who is son of the deceased lodged F.I.R. on 17.11.2021 at 23:28 hours against the present applicant Brijesh Kumar and coaccused persons, namely, Kamal Singh and Mukesh Kumar with the allegations inter-alia that on 17.11.2021 at about 7:30 pm his father had gone to Ambedkar Park at Ramdas's place for a feast, where accused persons met his father and started abusing him. When his father forbade them to abuse him, the applicant shot him with his country-made pistol( tamancha ) on the exhortation of co-accused Kamal Singh and Mukesh Kumar whereby his father fainted and fell on ground. He was immediately took to hospital in a Dzire car, but doctors declared him dead.

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4- It is argued by learned counsel for the applicant that the applicant has been falsely implicated in this case. He disputing the place of incident submits that, in fact no such incident took place in the manner as alleged by the prosecution. It is vehemently urged that the place of incident has also wrongly shown by the prosecution in the F.I.R. In support of this submission, learned counsel for

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the applicant further pointed out that as per the prosecution case as recorded in G.D. no. 49 dated 18.11.2021, after inquest proceeding, on the information of police, forensic team reached at the spot but no blood stains, cartridges and other material evidence with regard to murder of the deceased were found at the spot. It is next submitted that as per F.I.R. version, incident took place on 17.11.2021 at 7:30 pm whereas, as per letter dated 17.11.2021 of Dr. Vikas Agnihotri Senior Medical OfÏcer C.H.C. Jaswant Nagar, Etawah, which was sent at 07.40 pm to S.H.O. Jaswant Nagar, Etawah, the deceased was brought to him on 17.11.2021 at 7:31 pm in dead condition. Referring the said letter, it is argued that under no circumstances can anyone cover a distance of five kilometer within one minute. This fact goes to suggest that the incident has not done at the place as indicated by the prosecution in the F.I.R. Apart from this, it is also argued that when the statement of informant-Pushpendra Kumar, who is son of the deceased recorded before the trial Court as PW-1, he could not told the name of owner of alleged Dzire car, in which the deceased was brought to the hospital. The copy of the statement of PW-1 produced by the learned counsel for the applicant during the course of argument is kept on record marked as paper no.'A'. It is further contended that as per the postmortem report of the deceased, one entry wound of firearm has been found on the body of the deceased and one bullet was also recovered from his body, but there is no recovery of any empty cartridges from the place of incident, which also indicates that the incident took place somewhere else. Much emphasis has been given by contending that in whole prosecution case, motive has not been alleged against the applicant neither in the F.I.R. nor during investigation or trial. A recovery of country-made pistol with a live cartridge has been shown by the police at the pointing out of the applicant, but the same was not sent for forensic test. It is pointed out that prior to lodging F.I.R. of this case on 17.11.2021, the applicant had no criminal history to his credit. Lastly, it is submitted by learned counsel for the applicant that there is no chance of the applicant of fleeing away from the judicial process or

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tampering with the prosecution evidence. The applicant is languishing in jail since 29.11.2021 and in case he is released on bail, he will not misuse the liberty of bail and will cooperate in the early disposal of the case.

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5- Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that innocence of the applicant can not be adjudged at pre-trial stage and in the F.I.R. the main role of causing firearm injury to the deceased has been assigned to the applicant but they could not dispute the other factual aspect of the matter as argued on behalf of the applicant.

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6- Having heard learned counsel for the parties and examined the matter in its entirety, I find that no cartridges, blood stains or any material evidence regarding murder were found at the spot. PW-1 in his statement before the trial Court has also stated that no blood of his father was found at the spot, hence the place of incident appears to be doubtful. Apart from this, no motive has been alleged by the prosecution against the applicant. PW-1 in his statement before the trial Court has also stated inter-alia that there was no litigation between him and co-accused Kamal and when abuses were happening from both sides, no one tried to save or intervene in the matter, which also appears to be improbable because as per the prosecution case, incident took place in a function, where many people had gathered. It also does not seem possible in itself for the incident to happen at 07:30 pm and the deceased reached hospital at 07:31 pm which is situated at the distance of five kilometer. Several other submissions were made on behalf of the applicant in order to establish his false implication but this Court is also of the view that further details, discussion relating to the incident need not be referred to herein since the allegations and the defence thereto is still open to be urged by the parties in the trial Court.

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7- Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties

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as noted above, I am of the view that the applicant has made out a prima-facie case for bail. Hence, the bail application is hereby allowed .

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8- Let the applicant- Brijesh Kumar , be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-

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(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable. He shall not seek any adjournment before the trial Court.

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(ii) That the applicant shall not directly or indirectly make any 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 to any police ofÏcer or tamper with the evidence.

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(iii) That after his release, the applicant shall not involve in any criminal activity.

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(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant on bail.

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9- In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.

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10- It is made clear that the observations contained in the instant order are confined to the issue of bail only and shall not affect the merit of the trial.

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Order Date :- 23.5.2023 Kashifa

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Digitally signed by :- KASHIFA High Court of Judicature at Allahabad

Brijesh Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Brijesh Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

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