Neutral Citation No. - 2025:AHC:49606 Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11219 of 2025 Applicant :- Ankit Kashyap Opposite Party :- State of U.P. Counsel for Applicant :- Gaurav Kakkar,Raghvendra Prakash Counsel for Opposite Party :- G.A. Hon'ble Sameer Jain,J. 1. Two supplementary affidavits filed by applicant are taken on record. 2. Sri Tarun Jha, learned Advocate filed his power on behalf of informant, which is taken on record. 3. Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri Tarun Jha, learned counsel for the informant and Sri Rajeev Dhar Dwivedi, learned AGA for the State-respondent. 4. The instant application has been filed seeking release of the applicant on bail in Case Crime No. 338 of 2024, under Sections 105, 351(2), 351(3), 352 BNS and Section 3/25/27 Arms Act, Police Station- Haldaur, District- Bijnor, during pendency of the trial in the court below. 5. FIR of the present case was lodged against applicant and according to FIR, applicant opened fire upon Dayawati @ Farro but fire opened by him hit the mother of the informant due to which, she sustained injuries and died. 6. Learned counsel for the applicant submitted that on the basis of false allegation, applicant has been made accused in the present matter and actually informant twisted the real incident and actually dispute arose between applicant and Ishwar Chand and during scuffling suddenly Ishwar Chand opened fire due to which, mother of the informant died but subsequently on the basis of false allegation, applicant has been made accused in the present matter. 7. He further submitted that with regard to incident, from the side of applicant an application was also moved under Section 173(4) BNSS, which has been annexed at page no. 115 of the paper book although, the same was rejected. He further submitted that considering the defence taken by applicant in his application U/s 173(4) BNSS, applicant should be enlarged on bail. 8. He further submitted that apart from the present case, however, applicant is having criminal history of four other cases but his criminal history has been explained in the instant bail application and he is in jail in the present matter since 21.12.2024. 9. Per contra, learned AGA as well as learned counsel for the informant opposed the prayer for bail and submitted that there is specific allegation against the applicant that he opened fire due to which, mother of the informant died, however, he did not intent to cause her heath and he opened fire upon Dawayati @ Farro but in spite of that there was no occasion to challan the applicant for the offence under Section 105 BNS rather he should be challaned for the offence under Section 102 BNS. 10. They further submitted that there are several eye-witnesses, who supported the version of the FIR and, therefore, applicant should not be released on bail. 11. I have heard learned counsel for the parties and perused the record of the case. 12. As per allegation made in the FIR, applicant during dispute opened fire upon Dawayati @ Farro but unfortunately mother of the informant sustained fire-arm injury and died. However, applicant has been challaned in the present matter for the offence under Section 105 BNS but considering the facts of the case, this Court finds merit in the argument advanced by learned AGA as well as learned counsel for the informant that he ought to be challaned for the offence under Section 102 BNS. 13. Further, there are number of eye-witnesses, who supported the version of FIR. 14. Further, however, it appears from the side of applicant an application U/s 173(4) BNSS was also moved against the informant and others but the same has already been dismissed. Further, even in view of this Court, on the basis of defence taken by applicant in his application U/s 173(4) BNSS, at this stage, the statements of eye-witnesses cannot be disbelieved. 15. Further, apart from the present case, applicant is also having criminal history of four other cases and he is in jail in the present matter only since 21.12.2024. 16. Therefore, considering the facts and circumstances of the case discussed above, in my view applicant is not entitled to be released on bail. 17. Accordingly, without expressing any opinion on the merits of the case, the instant bail application is rejected at this stage. 18. 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 :- 7.4.2025 KK Patel Digitally signed by :- KRISHN KANT PATEL High Court of Judicature at Allahabad