Shivbalak Vs State of U.P. Thru.Prin.Secy.Home Lko.

Neutral Citation No. - 2025:AHC-LKO:15752

Court No. - 15

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9153 of 2024

Applicant :- Shivbalak Opposite Party :- State Of U.P. Thru.Prin.Secy.Home Lko. Counsel for Applicant :- Arpit Singh,Nasrul Hasan,Umesh Pratap Singh Counsel for Opposite Party :- G.A.

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Hon'ble Subhash Vidyarthi,J.

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Heard Shri Arpit Singh, learned counsel for the applicant, Shri Anurag Verma, learned A.G.A. for the State and perused the records.

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The instant application has been filed seeking release of the applicant on bail in Case Crime No.159 of 2023, under Sections 302, 34 I.P.C. and Section 3/25 of Arms Act, registered at Police Station Unchahar, District Raebareli.

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The aforesaid case has been registered on the basis of an F.I.R. lodged on 03.04.2023 at 23:16 hours against (i) Sukhendra Lodh (ii) Motu @ Mohit and (iii) Rohit alleging that while informant's husband, her brother Harikesh and her cousin Kundan Lodh were eating eggs in an egg shop in front of Pawan Kirana Store, three named accused persons came from behind and shot at the informant's husband. The F.I.R. states that an old property dispute is pending in a court between the accused persons and the informant.

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In the statement of the informant recorded under Section 161 Cr.P.C., she reiterated the F.I.R. version. Statement of Harikesh, brother of the informant, who is stated to be an eye witness in the F.I.R., was also recorded, wherein he also reiterated the

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F.I.R. version. However, the other eye witness Kundan Lodh as well as the egg shop owner Sahil added the name of the applicant, besides three persons named in the F.I.R.

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The post-mortem examination report mentions a single injury i.e. a circular entry wound of 4cm diameter with lacerated margins in the head and the cause of death has been opined to be haemorrhagic shock due to ante mortem firearm injury.

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In the affidavit filed in support of the bail application it has been stated that the applicant is innocent, he has been falsely implicated in the present case and he has no criminal history.

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The State has filed a counter affidavit enclosing therewith the material collected during investigation and a copy of the charge sheet dated 01.06.2023. A copy of the recovery memo has been annexed with the counter affidavit as per which a 12 bore country-made pistol was recovered from an open place on the pointing out of the applicant. A misfired cartridge was stuck in the barrel of the pistol. It is recorded in the recovery memo that the applicant stated that he had fired a shot but it misfired.

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A supplementary affidavit has been filed on behalf of the applicant annexing therewith a copy of the statements recorded by the trial court. The informant has stated that six persons were involved in the incident. Kundan Lodh, cousin of the informant, whose name was mentioned in the F.I.R. as an eye witness, has turned hostile.

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Learned A.G.A. has vehemently opposed the prayer for bail and he submitted that the deceased died due to a gunshot injury of his head and a firearm has been recovered on the pointing of the applicant.

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Having considered the aforesaid facts and circumstances of

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the case and keeping in view the fact that the informant is not an eye witness; that the F.I.R. mentions the name of Harikesh, Kundan Loadh as eye witnesses of the incident and Kundal Lodh has turned hostile; that in the statement recorded under Section 161 Cr.P.C., the informant as well as Harikesh had mentioned involvement of only three persons in the incident and the applicant was not implicated in the F.I.R. or in the initial statements; that a property dispute is going on between the parties, which can give rise to a motive for commission of the offence, but which can also give rise to false implication and that the informant and eye witness have already been examined before the trial court and there is no probability of the said witnesses being influenced; that the applicant has no previous criminal history and he is languishing in jail since 24.04.2023 and without making any observation, which may affect the merits of the case, I am of the view that the aforesaid facts are sufficient for making out a case for enlargement of the applicant on bail in the aforesaid crime.

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Accordingly, this bail application stands allowed .

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Let the applicant- Shivbalak be released on bail in the aforesaid case on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

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(i) the applicant shall not tamper with the prosecution evidence;

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(ii) the applicant shall not pressurize the prosecution witnesses;

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(iii) the applicant shall appear on each and every date fixed by the trial court, unless his appearance is exempted by the learned trial court.

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Order Date :- 18.3.2025/Anupam S/-

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Digitally signed by :- ANUPAM SINGH PATEL High Court of Judicature at Allahabad, Lucknow Bench

Shivbalak v. State of U.P. Thru.Prin.Secy.Home Lko.

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Shivbalak v. State of U.P. Thru.Prin.Secy.Home Lko.

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