ASHOK KUMAR versus STATE OF U.P. AND ANR.

Citation: [2009] 1 S.C.R. 726 · Decided: 03-02-2009 · Supreme Court of India · Bench: ARIJIT PASAYAT · Disposal: Disposed off
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Judgment (excerpt)

A 
B 
[2009] 1 S.C.R. 726 
ASHOK KUMAR 
v. 
STATE OF U.P. AND ANR. 
(Criminal Appeal No. 202 of 2009) 
FEBRUARY 3, 2009 
[DR. ARIJIT. PASAYAT AND DR. MUKUNDAKAM 
SHARMA, JJ.) 
Bail: Grant of bail - High Coutt granted bail giving finding 
C about non possibility of the injuries sustained by the 
deceased in the manner indicated by prosecution - Held: 
While considering bail application, such finding should not be 
recorded. 
0 
The bail application filed by accused-respondent 2 
was allowed by High Court on the ground that ballistic 
report revealed that pellets found in the body of the 
deceased could not be caused by the factory made rifle 
of the accused. 
E 
The complainant-appellant challenged the order of 
F 
High Court on the ground that High Court failed to see 
that the examination report of the firearm was dubious. 
Disposing of the appeal, the Court 
HELD: The High Court arrived at a definite 
conclusion about non possibility of the injuries having 
been sustained by deceased in the manner indicated by 
the prosecution. While considering the bail application, 
such a finding should not be recorded. The order sheet 
G revealed that adjournments were liberally granted on the 
application filed by the accused. Since the accused is on 
bail for considerable length of time, it is not appropriate 
to cancel the bail, though there appears to be some 
H 
726 
ASHOK KUMAR v. STATE OF U.P. AND ANR. 
727 
.,..._ 
substance in the plea that the impugned order granting 
A 
bail suffers from various infirmities. The trial should be 
completed within three months. If the complainant or any 
witness sought protection for appearance before the 
Court during trial, the same should be provided by the 
concerned police officials. The trial Court would take up 
B 
the matter on continuous basis to complete the trial within 
the prescribed period. (Para 8) [730-E-F] 
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal 
No. 202 of 2009. 
c 
From the Order dated 22.6.2007 of the High Court of 
Judicature at Allahabad in Crl. Misc. II Bail Application No. 9716 
of 2007. 
Sona! Jain, Sachin Nagar, Umesh Chaudhary and Pravir D 
-~ 
Kumar Jain for the Appellant. 
Sushi! Kumar, L.R. Khatana, S. Rajappa, T.N. Singh, 
Rajeev Dubey and Kamlendra Mishra for the Respondents. 
The Judgment of the Court was delivered by 
E 
DR ARIJIT PASAYAT, J.1. Leave granted. 
2. Challenge in this appeal is to the order passed by a 
learned Single Judge of the Allahabad High Court granting the 
F 
prayer for bail made by respondent No.2-Kamal Singh. The 
present appeal has been filed by the complainant. 
3. Background facts in a nutshell are as follows: 
Respondent No.2 faced trial in Crime No.96 of 2006 for 
G 
alleged commission of offence punishable under Sections 147, 
.. 
148, 149, 323, 307, 302, 504 read with Sections 34 and 120B 
of the Indian Penal Code, 1860 (in short the · IPC'). Earlier the 
bail appli_cation filed was rejected by the High Court on 
16.11.2006. In support of the second bail application it was 
H 
728 
SUPREME COURT REPORTS 
(2009] 1 S.C.R. 
A submitted that pellets were found on the body of the deceased 
by the doctor and such pellets and the licensed rifle were $en! 
to the ballistic expert. From the report received it is revealed 
that such pellets could not have been used by the licensed rifle 
of the accused. The ballistic report completely falsified the 
B prosecution case. The High Court accepted the prayer for bail 
observing as follows: 
"It" is admitted case on behalf of prosecution that the 
applicant committed murder of deceased by causing 
c 
injuries with the licensed 315 bore factory made rifle. The 
police report also reveals that three pieces of pellets were 
found by the doctor in the body of deceased Monu. These 
pellets and licensed rifle of the applicant were sent to Vidhi 
Vigyan Prayogshala Agra from where the report was 
D 
received which is on record which reveals that pellets could 
not be used in licensed rifle of 315 bore factory made. 
Such pellets are used in 12 bore weapon. Soft Nose 
Jacketed Bullets are used in standard cartridges of 315 
bore factory rifle. Therefore, this is the fresh and good 
ground to allow the bail application of present applicant. 
E 
After considering the report of ballistic expert, the bail 
application of present applicant is hereby allowed." 
4. Learned counsel for the appellant submitted that the 
F approach of the High Court is clearly erroneous. It is pointed 
out that
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