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Himachal Pradesh High Court · body

2018 DIGILAW 2083 (HP)

Ganesh Kumar v. State Of Himachal Pradesh

2018-11-26

SANDEEP SHARMA

body2018
JUDGMENT Sandeep Sharma, J. - Bail petitioner namely, Ganesh Kumar, who is behind the bars since 24.2.2018, has approached this Court in the instant proceedings filed under Section 439 of the Code of Criminal Procedure, praying therein for grant of regular bail in respect of FIR No. 38 of 2018, dated 24.02.2018, under Sections 323, 452, 504, 307, 302 read with Section 34 IPC registered at police Station, Amb, District Una, Himachal Pradesh. 2. Sequel to order dated 21.11.2018, ASI Sultan Singh, has come present alongwith the record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 3. Careful perusal of the record/status report, reveals that complainant Deepak Jaswal in his initial statement recorded under Section 154 Cr.P.C, alleged that at 8:00 PM when he reached his house after closing his shop, his son namely, Himanshu disclosed him that some miscreant has uprooted flag of political party from his roof and as such, he went to his roof. Complainant further reported that bail petitioner, who happened to be son of his Uncle was hurling abuses upon the complainant and his wife under the influence of liquor. As per the complainant, at that time bail petitioner was accompanied by coaccused namely Ajay Kumar and Babbu @ Veer Singh, who were also hurling abuses and they also proclaimed that they have uprooted the flag from their roof. Complainant further reported to the police that person namely, Gurdeep Kumar, who resides just adjacent to his house made an endeavour to stop above named accused from hurling abuses, but bail petitioner, who had iron rod in his hand entered into the house of Gurdeep Kumar and started giving beatings to him as well as his wife Smt. Sudershana Devi, who were subsequently rescued by the people gathered on the spot after having heard cries of Gurdeep Kumar and his wife. Allegedly, bail petitioner came to the courtyard of complainant carrying iron rod in his hand and when he was stopped by the wife of the complainant namely, Hema, she was also attacked by bail petitioner. Allegedly, bail petitioner came to the courtyard of complainant carrying iron rod in his hand and when he was stopped by the wife of the complainant namely, Hema, she was also attacked by bail petitioner. On the basis of aforesaid statement made by the complainant under Section 154 Cr.P.C, initially FIR under Sections 452, 307, 504, 323 and 34 IPC came to be registered against the bail petitioner, coaccused Ajay and Babbu @ Veer Singh. Police also got Hema, Gurdeep Kumar and Sudershana Devi medically examined at Civil Hospital, Amb, where Medical Officer termed injuries suffered by Gurdeep Kumar, Sudershana Devi and Hema to be dangerous to life. 4. Though, record reveals that Civil Hospital, Amb referred Smt. Sudershana Devi to District Hospital, Una for further treatment, but she was taken to Shivam Hospital, Hoshiarpur for treatment, where she unfortunately expired on 26.2.2018, whereafter a case under Section 302 IPC came to be incorporated in the FIR, detailed hereinabove.After completion of the investigation, police presented the challan in the competent Court of law. Now, the matter is fixed for framing of charge on 4.1.2019. It is also not in dispute that two coaccused namely Ajay Kumar and Babbu @ Veer Singh have been already enlarged on bail by the Coordinate Bench of this Court vide order dated 3.10.2018, passed in Cr.MP(M) No.1084 &1085 of 2018. 5. Mr. N.K.Thakur, learned Senior Advocate representing the bail petitioner, while referring to the record/ status report, vehemently argued that no case is made out against the bail petitioner under Section 302 IPC and as such, he deserves to be enlarged on bail. Mr. Thakur, while referring to order dated 3.10.2018, passed by the Coordinate Bench of this Court in Cr.MP(M) No.1084 &1085 of 2018, contended that since coaccused Ajay Kumar and Babbu @ Veer Singh stand already enlarged on bail, present bail petitioner also deserves to be enlarged on bail. While referring to the postmortem report, Mr. Thakur, contended that as per final opinion given by Regional Hospital, Una, Sudershana Devi died on account of myocardial infection and there is no connection, if any, of injuries allegedly caused by bail petitioner with the cause leading to death of Sudershana Devi and as such, bail petitioner cannot be allowed to incarcerate in jail for indefinite period mere on the incorporation of Section 302 IPC in the FIR. Mr. Mr. Thakur, while referring to the record/status report, further contended that as per challan there is no independent witness associated by the investigating agency to prove the case of prosecution, rather all the family members of complainant have been cited as prosecution witnesses ,which itself suggest that bail petitioner has been falsely implicated. He further contended that though prosecution has purposely not brought on record factum with regard to prior enmity of bail petitioner with the complainant, but bare reading of initial complaint made by the complainant, itself suggest that relation of complainant with the petitioner was not good. Lastly, Mr. Thakur, contended that bail petitioner is behind the bars for the last 9 months and nothing remains to be recovered from him and as such, no fruitful purpose would be served in case he is allowed to remain behind the bars during the trial, rather his freedom would be curtailed for indefinite period, which would be in violation of Article 21 of the Constitution of India. He further contended that the bail petitioner is first offender and there is no case registered against him in past and as such, his prayer for grant of bail may be considered sympathetically. 6. Mr. Dinesh Thakur, learned Additional Advocate General while acknowledging the factum with regard to filing of challan in the competent court of law, contended that keeping in view the gravity of the offences allegedly committed by the bail petitioner, he does not deserves to be enlarged on bail, rather needs to be dealt with severely. Mr. Thakur, further contended that as per the medical evidence available on record, it is quite apparent that bail petitioner gave merciless beatings to the wife of the complainant and injured namely Gurdeep Kumar and Sudershana. He further contended that one person namely, Sudershana Devi died on account of the beatings given by bail petitioner and as such, present bail petition deserves out right rejection. While referring to the postmortem report, Mr. Thakur, contended that sustainability of Section 302 IPC, if any, is to be seen on the totality of evidence adduced on record by the investigating agency and same cannot be decided on the basis of the postmortem report, which certainly suggests that cause of death is myocardial infection. While referring to the postmortem report, Mr. Thakur, contended that sustainability of Section 302 IPC, if any, is to be seen on the totality of evidence adduced on record by the investigating agency and same cannot be decided on the basis of the postmortem report, which certainly suggests that cause of death is myocardial infection. He further contended that even for the sake of arguments it is presumed that Sudershana died on account of myocardial infection, there is ample evidence collected on record by the investigating agency suggestive of the fact that Sudershana Devi prior to her death had suffered grievous injuries on her body on account of blow of blunt weapon given by the bail petitioner, and as such, he does not deserves to be enlarged on bail. 7. Having heard learned counsel for the parties and perused the material available on record, this Court finds that since specific allegations with regard to beatings, if any, given to the injured namely, Hema, Gurdeep Kumar and deceased Sudershana Devi were against the bail petitioner and as such, Coordinate bench of this Court rightly granted bail to other coaccused namely Ajay Kumar and Babbu & Veer Singh,who were allegedly hurling abuses. This Court further finds from the record that on 23.2.2018 after the alleged incident, deceased Sudershana was taken to CH, Amb, from where she was referred to District Hospital, Una, but she was taken by her family members to Shivam Hospital Hoshiarpur, where she unfortunately expired on 26.2.2018 after four days. It is also not in dispute, rather same is matter of record that postmortem was conducted on 26.2.2018 by RH Una, wherein it has been specifically recorded that deceased died due to myocardial infection. It is also not in dispute, rather same is matter of record that postmortem was conducted on 26.2.2018 by RH Una, wherein it has been specifically recorded that deceased died due to myocardial infection. No doubt, medical evidence adduced on record suggest that on account of alleged beatings given by the bail petitioner, persons namely, Hema, Gurdeep Kumar and deceased Sudershana suffered simple as well as grievous injuries, but there is no definite opinion rendered by the forensic expert/doctor with regard to connection, if any, of injuries alleged to be caused by bail petitioner on the person of Sudershana with the cause of her death, rather, specific cause of death has been given as myocardial infection an as such, this Court is persuaded to agreed with contention of learned counsel representing the bail petitioner that at this stage, there is nothing adduced on record by the investigating agency suggestive of the fact that deceased Sudershana died on account of the injuries caused on her head/body by the alleged blow of iron rod given by bail petitioner. No doubt, medical evidence reveals that injured, named hereinabove, suffered simple as well as grievous injuries on their persons on account of the beatings given by bail petitioner and as such, section 307 IPC came to be incorporated in the FIR, but this Court cannot loose the sight of the fact that bail petitioner is behind the bars for the last 9 months and his guilt, if any, is yet to be proved, in accordance with law. 8. Though, aforesaid aspects of the matter are to be considered and decided by the learned court below on the basis of the totality of evidence collected by the prosecution, but at this stage, this Court having perused the material available on record sees no reason to allow the bail petitioner to incarcerate in jail for indefinite period, especially when his guilt is yet to be proved in accordance with law. There is no material placed on record by the investigating agency suggestive of the fact that in the event of petitioner''s being enlarged on bail, he may flee from justice or he may tamper with evidence. Apprehension expressed by learned Additional Advocate General can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing the bail petitioner. 9. Apprehension expressed by learned Additional Advocate General can be best met by putting bail petitioner to stringent conditions, as has been fairly admitted by learned counsel representing the bail petitioner. 9. It has been repeatedly held by Hon''ble Apex Court as well as this Court that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved, in accordance with law. 10. Recently, the Hon''ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr.,decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon''ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon''ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a firsttime offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In ReInhuman Conditions in 1382 Prisons 11. The Hon''ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation , (2012) 1 SCC 40 ; held as under: " The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, "necessity" is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson." 12. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. The Hon''ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another , (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/- (Rs. 14. Consequently, in view of the above, present bail petition is allowed. Petitioner is ordered to be enlarged on bail subject to his furnishing personal bond in the sum of Rs. 2,00,000/- (Rs. Two lakh) with two local sureties in the like amount each, to the satisfaction of the learned JMIC/ Additional Chief Judicial Magistrate,Amb, District Una, H.P. with following conditions: a. He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or the Police Officer; and d. He shall not leave the territory of India without the prior permission of the Court. e. He shall surrender passport, if any, held by him. 15. It is clarified that if the petitioner misuses his liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of the application alone. The bail petition stands disposed of accordingly. Copy dasti.