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Himachal Pradesh High Court · body

2019 DIGILAW 116 (HP)

Arun Kumar v. State Of Himachal Pradesh

2019-01-09

SURESHWAR THAKUR

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JUDGMENT : SURESHWAR THAKUR, J. 1. The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., where through he seeks indulgence, of his being ordered to be released from judicial custody, whereat, he stands extantly lodged, for, his allegedly committing offences, constituted under Section 302 IPC, read with Section 34 IPC, borne in case FIR No. 165 of 2018, of, 15.6.2018, registered with Police Station, Sadar Solan. 2. Previously, the bail-applicant, filed a bail application before this Court, constituted under the provisions of Section 439 of Cr.P.C. However, the afore application, on a request made by the learned counsel, for the bail-applicant, was, permitted to be withdrawn. However, subsequent thereto, a report under Section 173 Cr. P.C., is, stated to be filed, before the learned Committal Magistrate, hence, the afore fact does constitute, the relevant, changed circumstance, since, the afore order being made, by this Court, and the casting of the instant motion, before this Court. 3. The deceased, one Babu Ram, is disclosed, in the post-mortem report, to beget his end, in consequence to a head injury, hence suffered by him, in sequel to his being pushed, from the edge of the road, hence, below a dunga, holding a depth of 5 feet. The afore falling of the deceased, below a dunga, existing on the edge of the road, and, its holding a depth of 5 feet, is, attributed to the bail-applicant, alongwith, co-accused, upon hence being engaged in a scuffle, with the deceased, and, with theirs being heavily inebriated, and, prima-facie, with both the accused, sharing a joint intention, thereupon theirs' making the relevant incriminatory fatal push. 4. The learned counsel for the bail-applicant, has contended with much vigor, before this Court, that, the offence(s) constituted, in the apposite FIR, to be borne, under the provisions of Section 302 read with Section Section 34 of the IPC, rather, is, from a perusal of the status report, hence, not a befitting offence(s), allegedly committed by the accused. 4. The learned counsel for the bail-applicant, has contended with much vigor, before this Court, that, the offence(s) constituted, in the apposite FIR, to be borne, under the provisions of Section 302 read with Section Section 34 of the IPC, rather, is, from a perusal of the status report, hence, not a befitting offence(s), allegedly committed by the accused. He further proceeds to submit that the status report, in making the aforesaid, unveiling(s), rather renders amenable, the, bail-applicant, for, being bestowed, the, statutory/mitigatory effects, of, Exception-IV, to, Section 300 IPC, provisions whereof are extracted hereinafter: “Exception 4: Heat of passion Mere sudden quarrel would not entitle the accused to seek for Exception 4 to section 300; Samuthram alias Samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes(HC) 185 (Mad.) Exception 4: Scope and applicability of To invoke Exception 4 to Section 300, four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not taken any undue advantagte or acted in a cruel manner The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this Exception provided he has not acted cruelly; samuthram alias samudra Rajan v. State of Tamil Nadu, (1997) 2 Crimes(HC) 185 (Mad). (a) and thereafter he proceeds to submit, that, when hence the heinousness of the offences, initially constituted in the FIR, sands mitigated, and, thereupon with a concomitant reduction, in the imposition, of, sentence(s), upon the accused, on conclusion of trial, also begetting the apt sequel, hence given the prolonged incarceration of the bail-applicant, the, indulgence of bail being granted to him. 5. The learned Additional Advocate General has vehemently opposed the afore indulgence, being granted to the bail-applicant. 5. The learned Additional Advocate General has vehemently opposed the afore indulgence, being granted to the bail-applicant. He submits, that, the mandate of Exception-IV to Section 300 of the IPC, is not attracted, in the instant case, a) given rather the “secondly” of Section 300 of the IPC, rather enjoining its attraction hereat b) given the fatal bodily injury suffered by the deceased, in consequence, to, the relevant incriminatory fatal push, c) being within the knowledge of the accused, to be, hence likely to cause death of the accused. However, for the reasons, to be assigned hereinafter, the afore submission, made by the learned Additional Advocate General, is rejected, rather this Court is constrained to attract hereat, the, Exception-IV to Section 300 IPC d) The perusal of the status report, unveiling hence qua both the accused, alongwith the deceased, being in a heavily inebriated condition, e) theirs scuffling with each other, rather in a state of heavy inebriation, and theirs arriving onto the edge of the road, f) no evidence being adduced, nor existing on record, qua the eruption of, a, sudden scuffle, interse the accused and the deceased, being pre-meditated, g) also, when the afore factum of the begetting, of, the fatal head injury, hence emanates from the factum, of, theirs suddenly scuffling with each other, h) thereupon, it is befitting to conclude, that, all the participants, in the sudden scuffle, including the deceased, had, lost their sobriety, wherefrom, rather in a heat of passion, besides with want, of, pre-meditation, hence occurring, the, fatal push. 6. However, the learned Additional Advocate General has still proceeded to contend, that since the dunga, was, evidently sightable, and, with the scuffling party arriving, at the edge of the dunga, holding a depth of 5 feet, a) hence both the accused took undue advantage, vis-a-vis, its existence thereat, and also acted in a cruel or unusual manner, thereupon the espoused benefit, of Explanation-IV to Section 300 of IPC, being not bestowable upon the bail-applicant. 7. 7. However, the afore submission, made before this Court, by the learned Additional Advocate General, is straightway rejected, as a perusal of the site plan, reveals, that hence adequate lighting system, existing in the vicinity, of, the relevant place of occurrence, a) and, when, the depth of the dunga, existing along the edge of the road, was, easily decipherable, besides when all the participants, in a sudden scuffle, hence were heavily inebriated, and, also obviously lost their sobriety, b) thereupon, it cannot be concluded, that, hence there was any taking of any undue advantage, by any of the accused, or theirs acting in a cruel and unusual manner, c) rather the incriminatory act, of, giving a fatal push, is, prima-facie, to be concluded, to also, prima-facie, occur spontaneously, and, without it being accompanied, with, the requisite mens-rea. Since the sentence of imprisonment to be imposed, upon, the accused, on conclusion of trial, upon, the prosecution succeeding in proving any offence, and may be, the one under Section 304 of the IPC, hence may also beget concomitant reduction(s), vis-a-vis, charge, and sentence imposable under Section 300 IPC, thereupon, given the prolonged incarceration of the bail-applicant, and, with no evidence being adduced, that, in the event of bail being granted to the bail-applicant, there, is every likelihood of (a) his tampering with the prosecution evidence, (b) influencing prosecution witnesses, and, (c) fleeing from justice. 8. Accordingly, the bail applicant is ordered to be released from judicial custody, subject to compliance by him with the following conditions:-: (i) That the bail applicant shall furnish personal bond in the sum of Rs.5,00,000/- with two sureties in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Solan. (ii). That he shall join the investigation, as and when required by the Investigating agency. (iii). That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police. (iv). That he shall not leave India without the prior permission of the Court. (v). That he shall deposit his passport, if any, with the Police Station, concerned. (vi). That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody. (iv). That he shall not leave India without the prior permission of the Court. (v). That he shall deposit his passport, if any, with the Police Station, concerned. (vi). That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody. (vii) That upon his re-indulging in criminal activities, it shall be open to the respondent, to move this Court for cancellation of bail. 9. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.