Sudha Verma vs State Of Up & Anr

2. Challenge in this appeal is to the order passed by a learned Single Judge of the Allahabad High Court granting bail to respondent No.2-Dinesh Kumar. Bail was granted primarily on the ground that the co-accused has been released on the bail and at the most the case is one under Section 304 Part II of the Indian Penal Code, 1860 (in short the 'IPC') and not Section 302 IPC.

3. Learned counsel for the appellant submitted that the accused-respondent No.2 was involved in daylight cold blooded murder of his elder brother (husband of the appellant herein) by the licensed gun of his father in the presence of all family members and the relatives. Appellant was married to the deceased Rajesh Kumar in February, 1990 and they were blessed with three children. Some times prior to the incident, there was tension in the family on the issue of partition amongst deceased, his father and the two sons. On 16.5.2005 Rajjan Lal Verma, father of the respondent No.2 talked to Ved Prakash i.e. the brother of the appellant and told him about the extremely tense situation and told him to immediately come to Pukhrayan. Ved Prakash and Prem Prakash, brothers of the appellant reached Pukhrayan on 17.5.2005. The father and the two sons i.e. respondent No.2 and the accused were sitting in a room inside the house and talks for partition and distribution of property was going on. At about 3.30 p.m. the father became extremely excited and took out his licensed revolver and became offensive towards the deceased. Immediately, respondent No.2 picked up the licensed gun which was lying in a corner of the room, loaded the same and fired a shot at his elder brother-Rajesh Kumar, the deceased who sustained grievous fire-arm injuries on his vital organs. Injured Rajesh Kumar was shifted to a nearby hospital. He was referred to Kanpur Hospital. Before reaching the said hospital, he breathed his last.

4. The First Information Report (in short the 'FIR') was lodged against the deceased's father and the respondent No.2 by Ved Prakash and Prem Prakash. Deceased's father and respondent No.2 absconded for more than two months and ultimately surrendered on 23.7.2005 before learned Chief Judicial Magistrate, Kanpur. Charge sheet has already been filed on 2.8.2005 indicating commission of offence punishable under Section 302 IPC. The co-accused was granted bail by learned Sessions Judge on 6.8.2005. Thereafter, Dinesh Kumar and other criminals tried to compel the appellant to enter into a compromise. An FIR in this regard was lodged by the appellant with the police authorities and a case has been registered for offences punishable under Sections 147, 452, 323, 504, 506 and 307 IPC. Sessions Judge, Kanpur rejected the bail application of the respondent No.2 on 7.9.2005. Case was committed to the Court of Sessions and the matter is pending trial in Sessions Trial no.326 of 2005.

5. On 21.11.2005, respondent No.2 filed bail application. The High Court not only granted bail but recorded a finding that the case falls within the ambit of Section 304 Part II IPC. It is submitted that even after release on bail, the respondent No.2 and his father want to get the case finished and for this they assaulted the appellant physically. An FIR was lodged by Ved Prakash-brother of the appellant in this context on 21.3.2006.

15. The High Court has not indicated as to what is the relevance of grant of bail to co-accused ignoring that the respondent No.2 was the alleged assailant who fired the gun and killed the deceased. Strangely the conclusions, that there was no motive or there was a sudden quarrel appear to have been arrived at without any discussion and/or without reference to any particular material. The impugned order is unsustainable and is set aside. The matter is remitted to the High Court to consider the bail application afresh keeping in view the principles of law delineated above. Bail granted to respondent No.2 by the High Court is cancelled. He shall forthwith surrender to custody and thereafter only, his bail application can be considered.

16. Appeal is allowed to the aforesaid extent.