Gufran vs State Of U.P.
2025 Latest Caselaw 12855 ALL

Allahabad High Court

Gufran vs State Of U.P. on 21 November, 2025

Author: Krishan Pahal

Bench: Krishan Pahal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2025:AHC:209448
 

 
HIGH COURT OF JUDICATURE AT ALLAHABAD 
 
CRIMINAL MISC. BAIL APPLICATION No. - 39734 of 2025   
 
   Gufran    
 
  .....Applicant(s)   
 
 Versus  
 
   State of U.P.    
 
  .....Opposite Party(s)       
 
   
 
  
 
Counsel for Applicant(s)   
 
:   
 
Neeja Srivastava, Sr. Advocate   
 
  
 
Counsel for Opposite Party(s)   
 
:   
 
G.A.   
 
     
 
 Court No. - 67
 
   
 
 HON'BLE KRISHAN PAHAL, J.       

1. List has been revised. Supplementary affidavit filed by learned counsel for the applicant is taken on record.

2. Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Ms. Neeja Srivastava, learned counsel for the applicant as well as Ms. Ifrah Islam, learned State Law Officer for the State and perused the material placed on record.

3. Applicant seeks bail in S.T. No.55 of 2023, arising out of Case Crime No.242 of 2024, under Sections 103(1), 85, 124(1) B.N.S., Police Station- Nakhasa, District- Chandausi, during the pendency of trial.

PROSECUTION STORY:

4. The FIR was instituted by the informant stating that applicant and other family members are stated to have sprinkled oil over his sister and set her afire on 16.9.2024 at about 07:00 a.m. She was rushed to hospital, whereby she expired during treatment.

ARGUMENTS ON BEHALF OF APPLICANT:

5. The applicant is absolutely innocent and has been falsely implicated in the present case. He has nothing to do with the said offence. The FIR is delayed by about two days and there is no explanation of the said delay caused.

6. The prosecution witnesses have been examined as PW-1, PW-2, PW-3, PW-4 and PW-5 of which four witnesses are of fact and all have not supported the prosecution story. They have stated that the deceased caught fire during cooking in kitchen.

7. The statement of deceased person has been recorded by the Investigating Officer U/s 180 BNSS, which cannot be termed as dying disposition as the said disposition is hit by the Regulation-115 of UP Police Regulations.

8. Much reliance has been placed on paragraph-7 of the judgment of Supreme Court passed in State of UP vs. Atar Singh and Others, (2007) 14 SCC 193, which reads as under:- "7. The High Court noted that even though in the FIR names of some other persons have been noted as witnesses, none of them had been examined. The High Court was of the view that statement of the deceased recorded by the investigating officer under Section 161 of the Code of Criminal Procedure, 1973 (in short ?CrPC?) cannot be treated to be the dying declaration. The investigating officer (PW 11) noted that when he reached the spot in the morning of 5-5-1979 subsequent to the lodging of the FIR at about 3.15 a.m. he had found the deceased, Sohan Pal and Katori to be lying there in injured condition. He recorded the statement of the deceased (Ext. Ka-20). The High Court referred to the bed head ticket of the deceased in which it was stated that his general condition was noted low when he was admitted in the hospital on 5-5-1979. The High Court also noted the admitted position that the investigating officer did not follow the instructions contained in Regulation 115 of the U.P. Police Regulations relating to recording of dying declaration. Reference was made to a decision of this Court in Balak Ram v. State of U.P. [(1975) 3 SCC 219 : 1974 SCC (Cri) 837 : AIR 1974 SC 2165] wherein it was noted that it would not be prudent to base conviction on a dying declaration made to the investigating officer which is not signed by the persons making it and has not been taken in the presence of two witnesses."

9. Reliance has been placed on paragraph-53 of the judgment of Supreme Court passed in Balak Ram vs. State of U.P., (1975) 3 SCC 219, which reads as under:- "53. The second dying declaration is alleged to have been made to the Investigating Officer. Investigating Officers are keenly interested in the fruition of their efforts and though we do not suggest that any assumption can be made against their veracity, it is not prudent to base the conviction on a dying declaration made to an Investigating Officer. Yogendra Sharma says that while Tribeni Sahai was lying in a car at the scene of offence he made a statement implicating the accused. Yogendra Sharma produced a true copy of an entry in his case diary stating that even as he was still in the car, he recorded the dying declaration in the case diary which he was carrying with him. It is difficult to appreciate why, if there was time enough to reduce the dying declaration into writing, Yogendra Sharma did not obtain Tribeni Sahai's signature or at least the signatures of any of the large number of persons who had surrounded the car. Rule 115 of the U.P. Police Regulations expressly enjoins the Investigating Officer to record a dying declaration, if at all, in the presence of two respectable witnesses and after obtaining the signature or mark of the decalarant at the foot of the declaration. Besides, if the Investigating Officer was in such haste that he did not even think it proper to wait at the police station until the various columns on the first page of the FIR were duly filled in, it is rather difficult to believe that seized by such a pressing sense of emergency, he would take the case diary with him on the off-chance that a dying declaration may be in the offing."

10. Reliance has also been placed on paragraph-34 of the judgment of this Court passed in Smt. Krishnawati Devi & Others vs. State of UP, 2015 SCC OnLine All 3684, which reads as under:-

34. In the case of State of Uttar Pradesh v. Atar Singh reported in (2007) 14 SCC 193, Hon'ble the Apex Court in paragraph no. 7 and 8 has held as under:-

?7. ??????? The High Court also noted the admitted position that the investigating officer did not follow the instructions contained in Regulation 115 of the U.P. Police Regulations relating to recording of dying declaration. Reference was made to a decision of this Court in Balak Ram v. State of U.P. (1975) 3 SCC 219 wherein it was noted that it would not be prudent to base conviction on a dying declaration made to the investigating officer which is not signed by the persons making it and has not been taken in the presence of two witnesses.

8. The High Court also noted that there was no explanation offered as to why the dying declaration was not recorded in the presence of the Magistrate which is the usual course, though he died on 7.5.1979 at about 4:00 p.m. Therefore, the High Court treated the same to be a statement recorded in terms of Section 161 Cr.P.C. which cannot be treated to be a dying declaration.? 11. In view of the aforesaid judgments, the Investigating Officer is bound to get the fitness certificate of the injured person herein.

12. The injured person was not is a position to depose and she was rushed to hospital by the applicant himself. The fact that applicant himself rushed the deceased to hospital for treatment stands fortified by the medical report filed as Annexure-3 to the affidavit filed with bail application.

13. Much reliance has also been placed on a note made by the doctor concerned, whereby he has stated as follows:- "Patient is brought to casualty with A/H/O burn injuries while cooking food at around 07:30 a.m. on 16.9.2024 at her residence. History is given by husband (Mohd. Gufran)"

14. The statements of children of the deceased person were also recorded and they have given contradictory statements. One of the daughters, Sadaf Noori has stated that applicant had sprinkled oil over the deceased person, but she has been examined as PW-2 during trial and has not supported the said statement and has been declared hostile.

15. The other children have not supported the prosecution story rather they have stated that deceased person caught fire while cooking food and the applicant had tried to extinguish the FIR and had even rushed her to hospital.

16. Much reliance has been placed on the statements of four independent witnesses, namely, Tahir Hussain, Shakir Hussain, Iqbal Hussain and Mohd. Tausif, who have also reiterated the fact that deceased had sustained accidental burn injuries.

17. There is no criminal antecedent of the applicant. The applicant is languishing in jail since 21.9.2024 and he is ready to cooperate with trial. In case, the applicant is released on bail, he will not misuse the liberty of bail.

18. Under these circumstances and the law as relied upon before, the applicant is entitled for bail.

ARGUMENTS ON BEHALF OF STATE/OPPOSITE PARTY:

19. The bail application has been opposed on the ground that the said statement of the deceased person recorded U/s 180 BNSS, although may not be supported by medical certificate, tantamounts to dying declaration.

CONCLUSION:

20. The well-known principle of "Presumption of Innocence Unless Proven Guilty" gives rise to the concept of bail as a rule and imprisonment as an exception.

21. A person's right to life and liberty, guaranteed by Article 21 of the Indian Constitution, cannot be taken away simply because the person is accused of committing an offence until the guilt is established beyond a reasonable doubt. Article 21 of the Indian Constitution states that no one's life or personal liberty may be taken away unless the procedure established by law is followed, and the procedure must be just and reasonable. The said principle has been reiterated by the Supreme Court in Satender Kumar Antil Vs. Central Bureau of Investigation and another, (2022) 10 SCC 51.

22. Reiterating the aforesaid view, the Supreme Court in the case of Manish Sisodia Vs. Directorate of Enforcement, 2024 INSC 595, has again emphasized that the very well-settled principle of law that bail is not to be withheld as a punishment is not to be forgotten. It is high time that the Courts should recognize the principle that "bail is a rule and jail is an exception".

23. Learned A.G.A./State Law Officer could not bring forth any exceptional circumstances which would warrant denial of bail to the applicant.

24. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the aforementioned judgments of the Supreme Court and the Regulation-115 of UP Police Regulations, and without expressing any opinion on the merits of the case, prima faice, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

25. Let the applicant- Gufran, who is involved in aforementioned case crime be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified. (i) The applicant shall not tamper with evidence during trial. (ii) The applicant shall not pressurize/intimidate the prosecution witnesses. (iii) The applicant shall appear before the trial court on the date fixed.

26. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.

27. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.

(Krishan Pahal,J.)

November 21, 2025

Vikas Verma