Kunal @ Chiku Bairagi vs The State Of Madhya Pradesh
2023 Latest Caselaw 7204 MP

                                                               1
                            IN    THE         HIGH COURT OF MADHYA PRADESH
                                                    AT INDORE
                                                         BEFORE
                                           HON'BLE SHRI JUSTICE PRANAY VERMA
                                                     ON THE 3 rd OF MAY, 2023
                                            MISC. CRIMINAL CASE No. 13208 of 2023

                           BETWEEN:-
                           KUNAL @ CHIKU BAIRAGI S/O KAMALDAS BAIRAGI,
                           AGED ABOUT 32 YEARS, OCCUPATION: LABOURER, R/O
                           HOUSING BOARD      COLONY, DISTRICT DEWAS
                           (MADHYA PRADESH)

                                                                                             .....APPLICANT
                           (BY SHRI LUCKY BIJOLIA - ADVOCATE)

                           AND
                           THE STATE OF MADHYA PRADESH STATION HOUSE
                           OFFICER THROUGH P.S. KOTWALI, DEWAS, DISTRICT
                           DEWAS (M.P)

                                                                                          .....RESPONDENT
                           ( RESPONDENT/STATE BY SHRI GAURAV SINGH CHOUHAN -
                           GOVERNMENT ADVOCATE AND OBJECTOR BY SHRI ASHAY JAIN -
                           ADVOCATE)

                                 This application coming on for admission this day, the court passed the
                           following:
                                                                ORDER

1. They are heard. Perused the case diary /challan papers.

2. This is a First application under Section 439 of Criminal Procedure Code, 1973, as the applicant is implicated in connection with Crime No.316/2022 registered at Police Station Kotwali Dewas, District Dewas (MP) for offence punishable under Sections 307, 34 of the IPC and Sections 25, 27 of the Arms Act.

3. The applicant is in custody since 26.03.2022. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 04-05-2023 14:59:23

4. As per the prosecution, on 25.03.2022 at about 10.15 p.m. the complainant Arun Choudhary, Jacky Gehlot, Shiva Choudhary and Rahul Sisodiya were standing in front of Shiva Hotel. At that time two motorcycles in which there were four persons including present applicant came and the applicant fired upon the complainant Arun Choudhary with a rifle. He tried to save himself but the bullet hit him on his right leg. Co-accused Badal fired upon Rahul Sisodiya with a rifle who received bullet injury in his stomach. Thereafter, all four persons fled on their motorcycle. On lodging of the report, investigation was commenced during the course of which the accused including the present applicant have been implicated and arrested for the present offence.

5. Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the case. It was a case of free fight between the parties and the accused were also assaulted by the complainant party including being fired upon with weapons as a result of which some of them also received injuries. Though the applicant is alleged to have fired upon Arun Choudhary but he has not received any serious injury on his body and was rather discharged after preliminary treatment. The pistol which has allegedly been seized from the applicant is rusted hence it is not possible to say that the same was used in the incident. In the cross-case the empty cartridge of a rifle of 7.65 mm has been recovered from which it is apparent that one of the complainant party attempted to fire upon the applicant and other co-accused but instead received injury on himself. It is further submitted that in the cross- case all the accused therein have already been enlarged on bail though some of them were having criminal antecedents against them. It is also submitted that in the present case itself co-accused Jitendra Sargara S/o Anandilal Sargara has

Signature Not Verified been enlarged on bail by this Court by order dated 08.02.2023 in M.Cr.C. Signed by: NEERAJ SARVATE Signing time: 04-05-2023 14:59:23

No.4297/2023 and the case of the applicant is similar to him hence on ground of parity he also deserves to be released on bail. It is further submitted that since both the parties were in custody the statement of witnesses could not be recorded before the trial Court as a result of which the trial has been delayed. The applicant is in custody since 26.03.2022 and the trial is likely to take time for its conclusion. It is hence submitted that applicant be released on bail. Reliance has been placed on the decision of this Court in Billu V/s. State of M.P. 1995 (I) M.P. Weekly Notes 56.

6. The aforesaid prayer has been opposed by learned counsel for the respondent/State along with learned counsel for the objector submitting that in view of the allegations levelled against the applicant he is not entitled to be released on bail.

7. I have heard learned counsel for the parties and have perused the case diary.

8. The allegation against the applicant specifically is of firing upon the complainant Arun Choudhary, who received a bullet injury in his thigh. From a perusal of the medical documents available on record it is clear that Arun Choudhary received a bullet injury in his thigh and the bullet got embedded therein. He had to be operated upon and the bullet had to be removed. When he was admitted in the hospital in Dewas he was referred to a higher centre and

was not discharged as contended by the counsel for the applicant. Arun Choudhary has thus received a grievous and a serious injury as a result of being fired upon by the applicant.

9. In the cross-case registered on the complaint of the present accused, no injury was received by any of the complainant party therein and no weapons Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 04-05-2023 14:59:23

were seized from accused. It appears that it is for that reason that accused in that case have been enlarged on bail by this Court by various orders passed by a co-ordinate Bench. The contentions as regards the complainant party attempting to fire upon the present accused and inflicting injury upon themselves is a matter to be considered at the appropriate stage. The pistol which has been recovered from the applicant though may be rusted but has not stated to be of such a condition where the same could not have been used to fire. The FSL report of the same is awaited. Since the complainant party were in custody in the other case, the statements could not be recorded in the present case but after their release their examination in chief has been recorded before the trial Court and their cross-examination is to be conducted. In view of the present fact situation, the judgment relied upon by the learned counsel for the applicant does not help him in any manner.

10. Thus in view of the material on record, the seriousness of the allegations levelled against the applicant and the injury received by the complainant, I do not deem it to be a fit case for grant of bail to the applicant. The application being devoid of merits is hereby dismissed.

(PRANAY VERMA) JUDGE ns

Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 04-05-2023 14:59:23