Allahabad High Court
Shri Prakash vs State Of U.P. on 9 January, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 83
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 23974 of 2021
Applicant :- Shri Prakash
Opposite Party :- State of U.P.
Counsel for Applicant :- Anurag Shukla
Counsel for Opposite Party :- G.A.,Vikas Srivastava
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Sri Anurag Shukla, learned counsel for applicant, Sri Vikas Srivastava, learned counsel for the informant and Sri Vibhav Anand Singh, learned A.G.A. for the State.
3. The present bail application has been filed by the applicant in Session Trial No.151 of 2021 in Case Crime No.520 of 2020, under Section 302 IPC, Police Station Ajitmal, District Auraiya with the prayer to enlarge him on bail.
4. As per prosecution story, the applicant is stated to have caused the death of Santosh Kumar over an old enmity by firing at him from his double barrel gun on 12.11.2020 at 7:15 pm.
5. Learned counsel for the applicant has stated that he has been falsely implicated in the present case. He has not committed any offence whatsoever. Learned counsel has further stated that there is a recovery of gun of the applicant at his own pointing out. The said recovery has been foisted on him by the police as the Investigating Officer had visited the very same place after recording the statement of the applicant in jail and had not found the gun. Thus, the recovery of a double barrel gun from the very same place, which is open to public, cannot be believed. Learned counsel has further stated that the postmortem report does not corroborate the prosecution story and the FSL report is negative as far as the use of the gun of the applicant is concerned. There is no criminal history of the applicant. The applicant is in jail since 24.11.2020.
6. Learned counsel for the applicant has placed much reliance on the judgment of Apex Court passed in case of Mohinder Singh vs. The State, AIR 1953 SC 415, wherein the Apex Court has observed that:-
"It is elementary that where the prosecution has a definite or positive case, it must prove the whole of the case. It was found doubtful whether the injuries which were attributed to the accused were caused by a gun or a rifle.
The sentence of death confirmed by the High Court was set aside."
7. Per contra, learned A.G.A. and learned counsel for the informant have vehemently opposed the bail application and have stated that the said FSL report is vague and has plainly mentioned that no opinion can be given about the said pallets being fired by the gun of the applicant, thus it cannot be inferred that the gun of the applicant has not been used. The applicant is named in the FIR and the injuries sustained by the deceased person are gun shot wounds.
8. The judgment referred by the learned counsel for the applicant passed by the Apex Court in case of Mohinder (supra) does not apply to the present case.
9. After hearing learned counsel for the parties and considering the facts and circumstances of the case, the case law adduced by the learned counsel for the applicant, and also the fact that the trial is going on, I do not find it a fit case for grant of bail to the applicant. The bail application is found devoid of merits and is, accordingly, dismissed.
10. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.
11. 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 :- 9.1.2023
Ravi Kant
