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Himachal Pradesh High Court · body

2019 DIGILAW 113 (HP)

Amit Kumar v. State of H. P.

2019-01-09

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Since all the bail petitions arise out of the same FIR, they are being taken up together for final disposal by this Court. 2. Bail petitioners, named hereinabove, have approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in connection with FIR No.301 of 2017, dated 27.11.2017, under Sections 147, 149, 323, 325, 341, 302 IPC, registered at police Station Kangra, District Kangra, Himachal Pradesh. 3. Sequel to order dated 28.12.2018, SI Daljit Singh, has come present along with the record. Mr. S.C. Sharma, 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. 4. Close scrutiny of the record/ status report, reveals that on 28.11.2017, complainant Vinay Kumar, who happened to be son of deceased Om Prakash, lodged complaint that on 27.11.2017, at 9:30 PM, he along with his father was attacked near his house by bail petitioners namely, Amit Kumar, Vijay Kumar, Munish Kumar and other co-accused namely, Hans Raj @ Vicky, Beena Devi and Kamla Devi. He further alleged that his father Om Prakash tried to stop above named persons from hurling abuses, but bail petitioners and other co-accused obstructed his passage and inflicted injuries upon him. Complainant specifically alleged in the complaint that accused Hans Raj @ Vicky gave a blow of bamboo stick on the head of his father i.e. Sh. Om Prakash, as a consequence of which, he fell down. He further alleged that after having heard his cries, his cousin brother Prashant Kumar and Munish Kumar also reached on the spot, but they were also beaten by the persons, named hereinabove. On the basis of aforesaid complaint, FIR No. 301/2017, dated 27.11.2017 came to be lodged against the bail petitioners and other co-accused under Sections 341, 323, 325, 147,149 and 307 of IPC. Sh. Om Prakash on account of the serious injury was admitted at Dr. R.P.G.M.C. Tanda, where he was declared unfit to give statement, however fact remains that subsequently Sh. Om Prakash succumbed to his injuries on 12.10.2018. The postmortem report/opinion given by the Forensic expert is as under:- “Cause of death, in this case is septic shock as sequalae of head injury( as mentioned in the treatment record)” 5. R.P.G.M.C. Tanda, where he was declared unfit to give statement, however fact remains that subsequently Sh. Om Prakash succumbed to his injuries on 12.10.2018. The postmortem report/opinion given by the Forensic expert is as under:- “Cause of death, in this case is septic shock as sequalae of head injury( as mentioned in the treatment record)” 5. After the death of Sh. Om Prakash, Section 307 of IPC came to be converted into Section 302 IPC. At this stage, it may be noticed that prior to insertion of Section 302 IPC, all the bail petitioners were ordered to be enlarged on bail by learned Sessions Judge, Kangra at Dharamshala. However, after lodging of FIR under Section 302 IPC, all the co-accused including bail petitioners applied for bail in the Court of learned Sessions Judge, Kangra at Dharamshala, but bail petition of bail petitioners and all the co-accused except Beena Devi and Kamla Devi were rejected, where after they have approached this Court in the instant proceedings. 6. Vide order dated 28.12.2018, bail petition having been filed by co-accused Hans Raj @ Vicky was dismissed as withdrawn by this Court, where after he was taken into custody by the police at Dharamshala, as has been stated in the status report filed in this Court in the instant proceedings. 7. Mr. Vinay Sharma, learned counsel representing the bail petitioners, while referring to the record/status report, vehemently argued that no case much less under Section 302 IPC is made out against the bail petitioners because bare perusal of the evidence collected on record, clearly suggest that Sh. Om Prakash died on account of the injury inflicted on his head by co-accused Hans Raj @ Vicky. He further contended that there is no evidence collected on record till date by the Investigating Agency suggestive of the fact that deceased Om Prakash was given beatings of any kind by the present bail petitioners and as such, they all deserve to be enlarged on bail. He further contended that there is no evidence collected on record till date by the Investigating Agency suggestive of the fact that deceased Om Prakash was given beatings of any kind by the present bail petitioners and as such, they all deserve to be enlarged on bail. Learned counsel representing the bail petitioners further contended that bare perusal of the status report further reveals that complaint having been filed by the wife of the deceased, where she had alleged that bail petitioners after having obtained bail from the Court of learned Sessions Judge, Kangra at Dharamshala, threatened the family of deceased, have been found to be incorrect and as such, no fruitful purpose would be served in case bail petitioners are sent behind the bars during the trial for indefinite period. Lastly, Mr. Sharma, contended that there is no material adduced on record by the Investigating Agency to demonstrate that bail petitioners are hardened criminal and in the event of their being enlarged on bail they would again indulge in such activities and as such, they being first offender deserve to be enlarged on bail. 8. Mr. S.C. Sharma, learned Additional Advocate General, while fairly admitting the factum with regard to completion of the investigation, contended that though all the bail petitioners have joined the investigation pursuant to order passed by this Court, but keeping in view the gravity of offence alleged to have been committed by them, they do not deserve to be enlarged on bail, especially in view of their subsequent conduct. Mr. Sharma, further contended that evidence adduced on record by the investigating agency, clearly suggest that bail petitioners along with co-accused Hans Raj @ Vicky, who is behind the bars, formed unlawful assembly and thereafter with premeditated mind attacked the complainant as well as his father, as a consequence of which, one person lost his life. He contended that in the event of petitioners being enlarged on bail, there is every likelihood of their fleeing from justice and causing threat to the family of the deceased, which is already under trauma. 9. He contended that in the event of petitioners being enlarged on bail, there is every likelihood of their fleeing from justice and causing threat to the family of the deceased, which is already under trauma. 9. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that though there is ample evidence adduced on record by the investigating agency to the effect that on the date of alleged incident all the bail petitioners were present on the spot of occurrence along with co-accused Hans Raj @ Vicky and they had hurled abuses to the complainant and his family, but if initial statement of complainant is read in its entirety, it clearly reveals that co-accused Hans Raj @ Vicky gave blow of bamboo stick on the head of Om Prakash, as a result of which, he fell on the spot. There is no evidence available on record at this stage, to infer that bail petitioners also gave beatings to deceased Om Prakash. Otherwise also, medical evidence, if perused in its entirety, reveals that deceased Om Prakash died on account of the injury caused on his head by the blow of a danda allegedly given by the co-accused Hans Raj @ Vicky, who is behind the bars. 10. True, it is that bare perusal of narration of story put forth by the prosecution reveals that bail petitioners formed unlawful assembly before the alleged occurrence, but at this stage, after having carefully perused the material available on record, this Court is persuaded to agree with Mr. Vinay Sharma, learned counsel representing the bail petitioners that there is no concrete evidence to connect the present bail petitioners with the alleged injury caused on the head of deceased, who unfortunately died in the alleged incident, rather complainant himself has categorically stated in the complaint made to the police that co-accused Hans Raj @ Vicky gave blow of bamboo stick on the head of his father, as a result of which, he fell on the ground. 11. 11. Though, aforesaid aspect of the matter are to be considered and decided by the learned court below on the basis of the totality of evidence to be led on record by the investigating agency, but this Court in view of the facts, as has been discussed hereinabove, sees no reason for custodial interrogation of the present bail petitioners, especially when the investigation is already complete. This Court having taken note of the apprehension expressed by the family of the deceased that they are being threatened, specifically directed the police vide order dated 28.12.2018 to investigate and report the matter to this Court. Status report filed today in the Court, clearly suggest that allegations of threats being extended to the family of the deceased have been not found to be correct as far as present bail petitioners are concerned. Police in its investigation found that co-accused Hans Raj @ Vicky was seen/found hurling abuses by somebody after having obtained bail from the Court of learned Sessions Judge, Kangra at Dharamshala, but that person is already behind the bars. 12. 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. 13. 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 held that freedom of an individual cannot be curtailed for indefinite period, especially when his guilt has not been proved. It has further held by the Hon’ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon’ble Apex Court has held 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. 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. 14. By now it is well settled that gravity alone cannot be decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that 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. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; wherein it has been 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 un-convicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some un-convicted 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 un-convicted person for the propose of giving him a taste of imprisonment as a lesson.” 15. 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. 16. 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: 1. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 2. nature and gravity of the accusation; 3. severity of the punishment in the event of conviction; 4. danger of the accused absconding or fleeing, if released on bail; 5. whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; 2. nature and gravity of the accusation; 3. severity of the punishment in the event of conviction; 4. danger of the accused absconding or fleeing, if released on bail; 5. character, behaviour, means, position and standing of the accused; 6. likelihood of the offence being repeated; 7. reasonable apprehension of the witnesses being influenced; and 8. danger, of course, of justice being thwarted by grant of bail. 17. Consequently, in view of the above, order dated 10.12.2018 passed by this Court is made absolute, subject to the petitioners furnishing their personal bonds in the sum of Rs. Two lac with two local sureties in the like amount each to the satisfaction of the Investigating Officers, besides the following conditions: a. they shall make themselves 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. they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. they shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or the Police Officer; and d. they shall not leave the territory of India without the prior permission of the Court. 18. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 19. 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 these applications alone. The bail petitions stand disposed of accordingly.