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2015 DIGILAW 2005 (PNJ)

Bhagwat Dayal v. State of Haryana

2015-11-02

AMOL RATTAN SINGH, S.S.SARON

body2015
JUDGMENT 1. Learned counsel for the State has filed affidavit of Shri Naresh Goyal, Deputy Superintendent, District Jail, Faridabad mentioning the period of imprisonment undergone by Bhagwat Dayal (applicant/appellant No. 1). The same is taken on record. 2. Heard learned counsel for the parties. 3. The criminal miscellaneous application has been filed by Bhagwat Dayal (applicant/appellant No.1) seeking suspension of his sentence of imprisonment during pendency of the appeal. 4. The sentences of imprisonments of Bharat (appellant No. 2 in CRA-D-1465-DB-2014), Naresh Parmar (appellant No. 4 in CRAD- 1541-DB-2014) and Mukesh (appellant in CRA-D-1600-DB-2014) have been suspended by this Court, vide order dated 04.08.2015 passed in criminal miscellaneous application No. CRM-7252-2015 in the present appeal No. CRA-D-1465-DB-2014. The facts of the case have been recounted in the said order dated 04.08.2015. 5. In the incident that had occurred on 30.09.2010, Bhagwat Dayal (applicant/appellant No. 1) was armed with an axe and he inflicted a blow with it on the head of Vijay (deceased). Vijay fell down on the ground. Thereafter, Satdev, Gopal (accused No. 5), Thakur, Umesh, Mukesh (appellant in CRA-D-1600-DB-2014), Mool Chand (accused No. 4) and Hari inflicted ‘lathi’ blows to him. 6. The postmortem examination on the dead body of Vijay was conducted by Dr. Swadesh Parshad (PW-16). According to doctor, there was a cut mark of 1 cm on the right fourth finger near joint and abrasion on the right lateral thigh; besides, there was swelling on the right side of temporal bone, sharp injury with ½ inch deep and 3 x ½ inch in length. Haematoma was present. According to Dr. Swadesh Parshad (PW-16), cause of death was due to shock and hemorrhage due to ante mortem head injury which was sufficient to cause death. The injury on the head of Vijay (deceased) has been attributed to Bhagwat Dayal (applicant/appellant No. 1) with an axe. 7. According to learned senior counsel for the applicant/ appellant No. 1, in case for any reason the applicant/appellant No.1 is not acquitted then in the said situation it can be gathered from the facts and circumstances that he acted in his right of private defence as the incident had occurred outside his house. It is submitted that the said plea is also fortified from the fact that there are injuries on his person, which have not been explained by the prosecution. It is submitted that the said plea is also fortified from the fact that there are injuries on his person, which have not been explained by the prosecution. It is submitted that Bhagwat Dayal (applicant/appellant No.1) in the circumstances would at the most be liable to be convicted for the offence under Section 304 Part II IPC. It is submitted that only a single blow with no repetition is attributed to Bhagwat Dayal (applicant/appellant No. 1). Even otherwise, it is submitted that nonexplanation of the injuries on the person of Bhagwat Dayal (applicant/appellant No.1) by the prosecution shows that it had suppressed the genesis of the occurrence and has not provided the true version. Learned senior counsel cites, Lakshmi Singh and others v. State of Bihar AIR 1976 SC 2263 in this regard. 8. In response learned counsel for the State has submitted that Bhagwat Dayal (applicant/appellant No. 1) is the main accused in the case, who is attributed an axe blow on the head of Vijay (deceased) and therefore, he is not entitled to the concession of bail, at this stage. 9. We have given our thoughtful consideration on the matter. 10. According to the affidavit that has been filed in Court today, Bhagwat Dayal (applicant/applicant No. 1) has undergone actual imprisonment of five years and twenty nine days as on 31.10.2015. The case involves arguable points as regards the nonexplanation of injuries on the person of Bhagwat Dayal (applicant/ appellant No. 1) as also whether the injury that has been inflicted, in case the applicant/appellant No.1 is not acquitted can be said to be a case where he acted in right of his private defence and, therefore, liable for the offence of culpable homicide not amounting to murder. 11. Keeping in view the period of imprisonment undergone by Bhagwat Dayal (applicant/appellant No. 1) and the fact that the appeal is not likely to mature for hearing in the near future, it would be just and expedient to suspend the sentence of imprisonment of Bhagwat Dayal (applicant/appellant No. 1) during pendency of the appeal. 12. Accordingly, the criminal miscellaneous application is allowed and the sentence of imprisonment of Bhagwat Dayal (applicant/appellant No. 1) shall, during pendency of the appeal remain suspended subject to his furnishing personal bond and surety to the satisfaction of the learned Chief Judicial Magistrate, Palwal.