HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL MISC. BAIL APPLICATION No. - 26276 of 2025 Court No. - 66 HON'BLE ASHUTOSH SRIVASTAVA, J. 1. Heard Shri Rajiv Lochan Shukla, assisted by Shri Vishveshwar Mani Tripathi, learned counsel for the applicant, Shri V.M. Zaidi assisted by Shri Vikram Bahadur Singh, learned counsel for the first informant, learned AGA for the State-respondents and perused the record. 2. This bail application under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 has been moved on behalf of accused-applicant, Brijesh Tiwari Alias Jagarnath Tiwari, seeking enlargement on bail in Case Crime No. 359 of 2024, under Sections 190, 191(2), 191(3), 109, 117(2), 351(3), 103, 3(5) of the Bharatiya Nyaya Sanhita, 2023 and Section 7 of Criminal Law Amendment Act and Section 3/25/27 of Arms Act, Police Station- Sikariganj, District- Gorakkhpur. 3. There is allegation in the First Information Report that on 05.08.2024 at about 07:00 pm, due to previous enmity, the accused-applicant along with other named and unnamed persons started assaulting the informant and his nephew (deceased) in front of informant's house, due to which the left hand of the informant got fractured and the nephew (deceased) of the informant sustained multiple fire arm injuries whereafter, the applicant and accused persons escaped after giving life threats. 4. Learned counsel for the applicant argued that the accused-applicant is innocent. He has been falsely implicated in this very case crime number and is languishing in jail since 09.08.2024. Learned counsel for the applicant submits that the FIR has been lodged after delay of 11 hours without any Versus Counsel for Applicant(s) : Rajiv Lochan Shukla, Vishveshwar Mani Tripathi Counsel for Opposite Party(s) : G.A., M J Akhtar, Rajeev Upadhyay, Vikram Bahadur Singh Brijesh Tiwari Alias Jagarnath Tiwari .....Applicant(s) State of U.P. .....Opposite Party(s) plausible explanation and is fatal to the prosecution story. It is further argued that in the FIR general allegation of assault upon the applicant resulting in fracture of his left hand and several fire arm injury upon the nephew of the applicant has been assigned to the applicant. The nephew succumbed to the fire arm injury. The post mortem of the deceased reveals the following injuries: "i. fire arm entry would over the lateral aspect of left elbow joint would is blackened inverted margin circular shape of size 1 cm x 1 cm, on cutting muscle through and through lateral condoyle of humorous fractures through and through medial aspect entry to exit probe through and through passing Exit would over medial aspect of left elbow joint margin averted of size 1.2 cm x 1.2 cm. ii. Fire arm entry wound, wound is blackened over back of left thigh posteriorly part inverted margin circular shape of size 1 cm x 1 cm on cutting muscle through and through front of thigh 1 metallic bullet recovered from front thigh muscles clotted blood present." 5. Learned counsel for the applicant further submits that the cause of death reported is heamorrgic shock and ante-mortem fire arm injuries. It is further argued that the FIR does not state the correct facts and the first informant is not the eyewitness to the incident. There are material contradictions in the FIR version and in the statements recorded under Section 180 inasmuch as in the FIR, it has been mentioned that the nephew informed the informant that it was the applicant who shot him while in the statement under Section 180 B.N.S.S., the informant has stated that he himself had seen the applicant shooting his nephew. It is also argued that one witness Deeput Chaudhary in his statement under Section 180 B.N.S.S. has stated that the deceased was assaulted with lathi danda, but as per the post mortem report there is no injury of lathi danda and, as such, the same does not support the prosecution version. Identical statements have been recorded by other witnesses namely Vishal Chaudhary, Sarita Chaudhary. It is next argued that the applicant has no criminal history and the applicant is not a flight risk. He shall cooperate with the trial and shall not misuse the liberty of bail. The charge sheet has already been filed and applicant is confined in jail since 09.08.2024. Hence bail is prayed for. 6. Per contra, Sri V.M. Zaidi, learned Senior Counsel assisted by Sri Vikram BAIL No. 26276 of 2025 2 Bahadur Singh, learned counsel for the informant as also Sri Vijendra Kumar, learned AGA for State-respondent vehemently opposed the bail plea, but submitting that all the witnesses have nominated the applicant for causing the fire arm injury to the deceased and, as such, bail is liable to be denied to the applicant. 7. I have heard the learned counsel for the parties and have carefully perused the records. The Court finds that in the FIR, role of causing fire arm injury to the deceased has been assigned to the applicant by the deceased himself before he succumbed to the injury. However, the FIR version has changed by the informant while recording his statement under Section 180 B.N.S.S. which it is stated that the informant was an eyewitness of the applicant shooting the deceased. Besides the incident is stated to have taken place on 05.08.2024 at about 7 pm. The intimation of death to the police authorities was made on the same day by 11.05 pm. Yet the FIR itself was lodged on 06.08.2024 at 5:37 am. The Court further finds that the prosecution witnesses Rahul Chaudhary, Deepu Chaudhary, Vishal Chaudhary, Sarita Chaudhary in their statements recorded under Section 180 B.N.S.S. have all stated that the deceased was first assaulted by lathi danda and thereafter shot at by the applicant. However, the post mortem of the deceased does not reveal any external assault injury. The first informant in his statement under Section 183 B.N.S.S. also stated that the jaw of the deceased was got broken by assault by Hockey and thereafter he was shot by the applicant. The post mortem does not reveal any such injury which does not corroborate with the prosecution version. The statement of Rahul Chaudhary, Sarita Chaudhary recorded under Section 183 B.N.S.S. are also on the same lines. Co-accused, Durgesh Singh, Adarsh Tiwari @ Golu Tiwari, Aditya Raj Tripathi @ Anurag Tripathi have been released on Bail by Coordinate Bench of this Court. 8. Considering all above facts and circumstances, the nature of accusations, severity of the punishment in the case of conviction and nature of supporting evidence, reasonable apprehension of tampering with the witness and prima facie case, but without commenting on merit of case, a case for bail is made out. 9. Accordingly, the bail application is allowed. 10. Let the accused-applicant, Brijesh Tiwari Alias Jagarnath Tiwari, BAIL No. 26276 of 2025 3 involved in above mentioned case crime number be released on bail, on his executing a personal bond and two reliable sureties each, in the like amount to the satisfaction of the court concerned, subject to the following conditions: 1. The applicant will not tamper with the evidence. 2. The applicant will not indulge in any criminal activity. 3. The applicant will not pressurize/intimidate the prosecution witnesses and co-operate in the trial. 4. The applicant will appear regularly on each and every date fixed by the trial court, unless his personal appearance is exempted through counsel by the court concerned. 11. In the event of breach of any of the aforesaid conditions, the court below will be at liberty to proceed to cancel his bail. August 28, 2025 Anjali BAIL No. 26276 of 2025 4 (Ashutosh Srivastava,J.) Digitally signed by :- ANJALI SHARMA High Court of Judicature at Allahabad