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2017 DIGILAW 1219 (HP)

Charan Dass v. State Of Himachal Pradesh

2017-10-31

CHANDER BHUSAN BAROWALIA

body2017
JUDGMENT Chander Bhusan Barowalia, J. (Oral) - The present bail application has been maintained by the Petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 228 of 2016, dated 08.12.2016, under Sections 302, 341, 323, 325 and 504 IPC read with Section 34 IPC, registered at Police Station Rampur, District Shimla, H.P. 2. As per the Petitioner, he is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail. 3. Police report stands filed. As per the prosecution, on 08.12.2016 police recorded the statement of injured Ram Singh, who was admitted in MGMSC, Khaneri. He, in his statement, alleged that on 08.12.2016 he went to the orchard of one Shri Durga Singh for pruning. In the evening, when he was returning and reached near Serigad nalla, the Petitioner started abusing him. In the interregnum, his brother, who is a shepherd, reached there and the Petitioner continued to abuse them from his house. The son of the Petitioner gave beatings to them with a stick and the Petitioner pelted stones on them. Due to the beatings they received injuries. The police got the complainant and his brother (Shri Shyam Singh) medically examined. Police also prepared the spot map and took into possession stones stained with blood. The statements of the witnesses were also recorded. As per the medical report qua injured Shyam Singh, it was opined by the doctor that ''injury sustained is dangerous to life", so section 307 was added. The age of the son of the Petitioner, who is co-Accused, on the day of occurrence was 16 years nine months and sixteen days. The Petitioner was arrested on 10.12.2016. It was unearthed during the examination that the Petitioner and his son gave beatings to the complainant and his brother (Shri Shyam Singh) and to rescue them sister and father of the complainant intervened. The Petitioner bit the finger of the sister of complainant and he also bit the ear of father of the complainant. On 12.12.2016 the brother of the complainant, Shri Shyam Singh, succumbed to his injures, so section 302 was added. The Petitioner bit the finger of the sister of complainant and he also bit the ear of father of the complainant. On 12.12.2016 the brother of the complainant, Shri Shyam Singh, succumbed to his injures, so section 302 was added. As per the prosecution, during the course of investigation, scientific evidence was collected and the same was subjected to chemical examination at SFSL, Junga, and the report wherefrom is as under: "1. Human blood was detected on exhibit-1 (blood stained stone) and exhibit-5c (Sweater, Ram Singh) but the result was inconclusive in respect of blood group, 2. Blood was not detected on exhibit-2 (Button), exhibit-3b (Topi, Shyam Singh) and Exhibit-4 Wooden Piee/Danda) 3. Human Blood of group ''AB'' was detected on exhibit-3a (zipper, Shyam Singh), Exhibit 5a (pants, Ram Singh), exhibit-5b (zipper, Ram Singh, exhibit-6 (blood sample, Ram Singh), exhibit 11(blood sample, Shyam Singh and exhibit-13 (shirt, Shyam Singh." The DNA analysis is yet to received. As per the Medico Legal Certificate issued by Medical Officer, MGMSC, Khaneri, the deceased Ram Singh died due to injury No. 1, which was grievous in nature. The viscera of the deceased was also sent for forensic analysis and as per the final opinion, the deceased died due to homicidal Cranio-cerebral trauma (Brain injury) and the same is possible with linear blunt object. As per the prosecution, the challan stands presented in the learned Trial Court and the case is listed for 20.11.2017 for consideration on charge. The Petitioner is a dangerous person and he committed the crime alongwith his son, i.e., co-Accused. Lastly, the prosecution has prayed that the offence committed by the Petitioner is heinous and there is likelihood that he may tamper with the prosecution evidence and flee from justice, so his bail application may be dismissed. 4. Heard the learned counsel for the Petitioner has argued that the Petitioner is innocent and he is resident of the place neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that there is no case made out against the Petitioner and even as per the allegations, which have come on record, no cause under Section 302 IPC is made out. He has further argued that there is no case made out against the Petitioner and even as per the allegations, which have come on record, no cause under Section 302 IPC is made out. Conversely, the learned Additional Advocate General has argued that the Petitioner has committed heinous crime and taking into consideration the fact that the Petitioner is in a position to tamper with the prosecution evidence, his bail application may be dismissed. In rebuttal, the learned counsel for the Petitioner has argued that the ''rule is bail not jail'', and that the Petitioner may be released on bail. The learned counsel for the Petitioner has relied upon the following judicial pronouncements: 1. Bhagirathsinh Judega vs. State of Gujarat, AIR 1984 SC 372 ; & 2. Amar Chand vs. State of H.P., (2015) Latest HLJ(HP) 1347. 5. In order to appreciate the rival contentions of the parties, I have gone through police report in detail. 6. In Bhagirathsinh Judega vs. State of Gujarat, AIR 1984 SC 372 , the Hon''ble Supreme Court has held that power to grant bail is not to be exercised as if the punishment before trial is being imposed and the material considerations in such a situation are whether the Accused would be readily available for his trial and whether he is likely to abuse the discretion granted in his favour by tempering with evidence. Apposite para of the judgment is extracted hereinbelow for ready reference: "5. It appears that the State of Gujarat field Miscellaneous Criminal Application No. 1724 of 1983 in the High Court of Gujarat seeking cancellation of the order granting bail to the appellant. A learned single judge of the High Court held that once a prima facie case is established the learned Sessions Judge ought to have taken into consideration the nature and gravity of the circumstances in which the offence is committed. The charge against the appellant is that he has committed an offence punishable under Section 307, IPC and Section 135 of the Bombay Police Act and even on the date of hearing of this Appeal before us on November 18, 1983, the Court was informed that the victim is alive and at present there is no danger to his life. Nearly 3 months have rolled by from the date of the offence. Nearly 3 months have rolled by from the date of the offence. We fail to understand what the learned Judge of the High Court desires to convey when he says that once a prima facie case is established, it is necessary for the court to examine the nature and gravity of the circumstances in which the offence was committed. If there is no prima facie case there is no question of considering other circumstances. But even where a prima facie case is established, the approach of the court in the matter of bail is not that of punishment but whether the presence of the Accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tampering with evidence. We would have certainly overlooked this aspect of the matter if the approach of the learned judge was otherwise one which would commend to us. It however appears that the learned judge was impressed by some of the most irrelevant considerations which prima facie emerge from the following observations of the learned Judge which permeates his whole order running into about 13 pages. Says the learned Judge: "The learned Judge ought to have seen the fact that the helpless victim had gone to the hospital for pre-operation checkup. He was a leading social and political worker. He was a leading social and political worker. He was an active worker and Secretary of ''Gundagiri Nivaran Samiti" which had raised a campaign against the atrocities allegedly having been committed by the Rajputs of Girasiya community. Admittedly the respondent is Girasiya and the complainant who was an active worker and Secretary of Gundagiri Nivaran Samiti ahd become a victim at the hands of the respondent. The learned Judge ought to have taken into consideration the material fact tht the incident had taken place in the premises of the Hospital which may terrorize a number of sick persons who might be getting treatment in the hospital." At another place, the learned Judge has observed that the learned Sessions Jude has ignored the fact that a social and political worker was attacked in the hospital premises with a knife having 9" blade and as many as 11 injuries were caused to a helpless victim." In the case in hand, there is likelihood that the Petitioner may tamper with the prosecution evidence. Likewise, there are chances that the Petitioner may also flee from justice, therefore, the judgment (supra) is not applicable to the present case. In Amar Chand vs. State of H.P., Latest (2015) HLJ (HP) 1347, a co-ordinate Bench of this Hon''ble High Court has held as under: "6. However, suffice it to say that the Accused, who was just 18 years of age, has been behind bars for more than one year. Investigation is complete. Challan stands filed and the prosecutrix, who is elder in age (23 years) as compared to the Accused, cannot be influenced by the Accused. He is a permanent resident of District Kullu; lives with his family and is not likely to flee away from the jurisdiction of the Court. No evidence can be tampered with by him. Medical evidence produced on record is an additional factor, which weighs with the Court. Whether the Accused was known to the prosecutrix from before; having intimacy; the alleged act was consensual or not; are matters left to be decided by the trial Court after appreciation of evidence." However, the judgment (supra) is again not applicable to the facts of the present case. 7. After going through the record in detail, this Court finds that as per the prosecution story the deceased has died because of the injury inflicted by the Petitioner. Therefore, the argument of the learned counsel for the Petitioner that no case is made out against the Petitioner under Section 302 IPC has no force. The case is at the initial stage and in case the Petitioner is enlarged on bail, in such a heinous offence, he will definitely tamper with the prosecution evidence and there are chances that he will flee from justice. Considering the guidelines laid down by the Hon''ble Supreme Court, this Court comes to the conclusion that as the Petitioner is in a position to flee from justice and he can tamper with the prosecution evidence, as the case is at its initial stages and also taking into consideration the heinousness of the crime, the present is not a fit case where the judicial discretion to admit the Petitioner on bail is required to be exercised in his favour. 8. In view of the above, the Petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, shall also stand(s) disposed of.