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2019 DIGILAW 95 (HP)

Kartik v. State Of Himachal Pradesh

2019-01-08

SANDEEP SHARMA

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JUDGMENT : SANDEEP SHARMA, J. 1. Bail petitioner namely Kartik, who is behind the bars since 5th October, 2018, has approached this Court in the instant proceedings, filed under Section 439 Cr. P.C., praying therein for grant of regular bail in connection with FIR No. 67/18, dated 05.10.2018, under Sections 302, 341, 323, 506,34 of IPC and under Section 3(1)(S) of Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989, registered at Police Station Nerwa, District Shimla, Himchal Pradesh. 2. Sequel to order dated 11.12.2018, ASI Jawant Singh, I.O. has come present with record. Mr. Dinesh Thakur, learned Additional Advocate General has also placed on record status report, prepared on the basis of investigation carried out by the investigating Agency. Record perused and returned. 3. Perusal of record/status report reveals that on 5th October, 2018, complainant Baldev Raj, who happened to be father of deceased Rajat Kumar, lodged a complaint in the Police Station Nerwa, alleging therein that on 5th October, 2018, his son, namely, Rajat Kumar had gone to Bohrad from Nerwa to drop her mother in a car along with his friend namely, Aman Himta, son of Sh. Sant Ram Himta, resident of village Daur. At about 4.30 P.M., when Rajat Kumar reached near college at Nerwa, one Swift Car bearing No. T 2864, being driven by accused Ritesh Bhikta, son of Mohan Lal Bhikta, came from opposite side and a person namely Ritesh Bhikta allegedly started quarreling with deceased Rajat Kumar on the ground that he failed to give him pass. Allegedly, accused Ritesh gave beatings to deceased Rajat Kumar. Complainant alleged that aforesaid facts as stated by him in the complaint, came to his knowledge through Aman Himta. On the basis of aforesaid compliant lodged by complainant Baldev Raj, formal FIR as detailed hereinabove, came to be lodged against the present bail petitioner as well as co-accused, namely, Ritesh Bhikta, Satish Kumar and Nikhil Manta. Bail petitioner and Ritesh Bhikta are behind bars since lodging of FIR, whereas, other co-accused, namely, Nikhil Manta and Satish Kumar, have been enlarged on bail being juvenile. It may be noticed that the aforesaid complaint was lodged by complainant Baldev Raj when deceased Rajat Kumar was alive, rather initial statement under Section 154 Cr.P.C was recorded in the presence of deceased Rajat Kumar, who thereafter was taken to Civil Hospital, Nerwa for treatment, but unfortunately, he couldn’t be saved. It may be noticed that the aforesaid complaint was lodged by complainant Baldev Raj when deceased Rajat Kumar was alive, rather initial statement under Section 154 Cr.P.C was recorded in the presence of deceased Rajat Kumar, who thereafter was taken to Civil Hospital, Nerwa for treatment, but unfortunately, he couldn’t be saved. 4. Police also got the statement of Aman Himta, who at the time of alleged incident was with deceased Rajat Kumar, recorded under Section 164 Cr.P.C before the Magistrate. After the death of deceased Rajat Kumar, his body was sent for post mortem to Indira Gandhi Medical College, Shimla. The Medical Officer, vide report dated 11th October, 2018, opined that “deceased died as a result of acute coronary insufficiency leading to cardiogenic shock and death. However, chemical examiner’s report is awaited.” 5. Mr. Manoj Pathak, learned counsel representing the bail petitioner, while referring to the record/status report, strenuously argued that no case much less under Section 302 IPC, is made out against the bail petitioner. Mr. Pathak, while inviting attention to this Court to the statement of Aman Himta, recorded under Section 164 of Cr.P.C, contended that alleged beatings, if any, were given by co-accused Ritesh and not by present bail petitioner. Mr. Pathak, contended that evidence collected on record by Investigating Agency though reveals that at the time of alleged incident, present bail petitioner was with main accused Ritesh Bhikta, but there is nothing on record to prove that beatings, if any, were also given by the present bail petitioner, which led to the death of deceased Rajat Kumar. Mr. Pathak, while referring to postmortem report, contended that though there is no positive evidence collected on record till date to connect present bail petitioner with an offence alleged to have been committed by him, but even if, for the sake of arguments, it is presumed that he was involved in the crime, postmortem report nowhere reveales that deceased died due to injuries allegedly caused to him in the alleged scuffle, rather report clearly reveals that he died because of heart-attack. Lastly, Mr. Pathak, contended that bail petitioner is a young boy of 21 years old and he has a bright carrier ahead. He also contended that guilt, if any, of him is yet to be proved in accordance with law, as such, his freedom cannot be curtailed for indefinite period. Lastly, Mr. Pathak, contended that bail petitioner is a young boy of 21 years old and he has a bright carrier ahead. He also contended that guilt, if any, of him is yet to be proved in accordance with law, as such, his freedom cannot be curtailed for indefinite period. While praying for considering his prayer for grant of bail sympathetically, Mr. Pathak, contended that otherwise also, petitioner being first offender, deserves to be enlarged on bail. 6. Mr. Dinesh Thakur, learned Additional Advocate General, on instructions of Investigating Officer, who is present in the Court, clearly acknowledged the factum with regard to completion of investigation, but contended that keeping in view the gravity of offence alleged to have been committed by the bail petitioner and other co-accused, he doesn’t deserve any leniency. Mr. Thakur, while making this Court to peruse the record, especially, statements of witnesses recorded under Section 161 of Cr.P.C. and statement of Aman Himta, recorded under Section 164 Cr.P.C, contended that present bail petitioner also gave beatings to the deceased Rajat Kumar, and as such, it cannot be said that bail petitioner was not involved in the alleged crime. Mr. Thakur, while responding to the submissions made by Mr. Manoj Pathak, with regard to the postmortem report, contended that the report of SFSl is yet awaited and as such, at this stage, it would be premature to conclude that deceased Rajat Kumar died due to heart-attack. He further contended that one young boy deceased Rajat Kumar has lost his life due to unruly behaviour of the petitioner as well as other co-accused and as such, he does not deserve to be released on bail because in the event of his being enlarged on bail, there is every likelihood of his being indulged in such activity again. 7. Having heard the learned counsel for the parties and perused the material available on record, this Court finds that though record reveals that on the date of alleged incident, present bail petitioner is also in the company of Ritesh Bhikta, who allegedly gave beatings to deceased Rajat Kumar, but if statement of Aman Himta recorded under Section 164 Cr.P.C., is read in its entirety, it clearly suggests that beatings were given to the deceased by Ritesh Bhikta. Statement of Aman Himta, who at the time of alleged incident was with deceased Rajat Kumar, further reveals that dispute, if any, was inter se Ritesh Bhikta and deceased Rajat Kumar and altercation if any, took place between Ritesh Bhikta and deceased Rajat Kumar. It has categorically come in the statement of Aman Himta that when deceased Rajat Kumar ran away from the spot, he contacted him on the phone and he disclosed him that Ritesh Bhikta gave him beatings. Aman Himta, also stated that Rajat Kumar disclosed him that he is having chest pain. 8. After having carefully perused the statement of Aman Himta, who is an eye witness to the incident, this Court is persuaded to agree with Mr. Manoj Pathak, learned counsel representing the bail petitioner that though present bail petitioner was present on the spot with the accused Ritesh Bhikta, but there is no sufficient evidence at this stage to infer that bail petitioner also gave beatings which ultimately led to the death of deceased Rajat Kumar. 9. Leaving everything aside, this Court after having perused the postmortem report, finds that at present there is no evidence to conclude that deceased died on account of injuries allegedly inflicted upon him in the scuffle, which took place between accused and deceased Rajat Kumar. There is one communication dated 29th November, 2018 in the record, sent by Associate Professor, forensic Medicine, IGMC, Shimla to Sub Divisional Police Officer, Theog, District Shimla, in response to letter No. 2778, dated 20.10.2018, wherein, police had asked for certain opinion. It would be opted to re-produce the relevant contents of that letter: “Subject: Regarding opinion FIR No. 67/2018 dated 5.10.2018, under Sections 302, 341, 323, 506, 34 IPC & 3(1) SC & ST (POA) Amendment Act 2015 (1 of 2016) Police Station, Nerwa, District Shimla. As per letter No. 2778 dated 20.10.2018, which was received in this office on 25.10.2018, regarding the said subject, find the answers to queries raised therein as below: Sr.No. Question Answer 1 Is it possible that deceased Rajat Kumar died due to beatings in the quarrel or not? There is no external/internal injury present over the body of the deceased which is sufficient to cause death. 2 Is there any internal injury sustained/present over the body of the deceased Rajat Kumar during the quarrel or not? There is no external/internal injury present over the body of the deceased which is sufficient to cause death. 2 Is there any internal injury sustained/present over the body of the deceased Rajat Kumar during the quarrel or not? Following internal injuries were appreciated and documented already in postmortem report: 1. There is 1x1 cm contusion over the left side of forehead appreciated after reflecting scalp without external corroborative injury without any fracture or intracranial bleed. 2. There is fracture of fourth rib on right side on anterior axillery line with minimal contusion of cm x cm is 3 rd and 4th intercostal space without any external 3. There is 2 X 1 cm contusion in inter-cellular space over two great vessels near heart without external corroborative evidence of injury on overlying skin 3 It is possible that deceased died due to jolt/shock due to beating or not? The board of autopsy surgeons did not attend the deceased just before death to venture the opinion on this question.” 10. Bare perusal of aforesaid communication reveals that during postmortem, no external/internal injury was found on the body of the deceased which was sufficient to cause death. If the aforesaid opinion is read juxtaposing postmortem report, this Court is persuaded to infer at this stage that cause of death of deceased is not the injuries, which deceased allegedly suffered in the scuffle. No doubt, report of SFSL is still awaited, receipt whereof may take some considerable time, but having carefully perused the record, this Court sees no reason to allow bail petitioner to incarcerate in jail for indefinite period during the trial. Though, aforesaid aspect of the matter are to be considered and decided by the learned Court below on the totality of evidence to be led on record by the prosecution, but at this stage, this Court having perused the record, sees no reason to curtail freedom of bail petitioner, who has otherwise, suffered for more than 100 days. Challan stands already filed and nothing remains to be recovered from the bail petitioner. Repeatedly, it has been held by the Hon’ble Apex Court as well as this Court that freedom of an individual is of utmost importance and cannot be curtailed for an indefinite period, especially, when guilt, if any, of his/her is yet to be proved in accordance with law. 11. Repeatedly, it has been held by the Hon’ble Apex Court as well as this Court that freedom of an individual is of utmost importance and cannot be curtailed for an indefinite period, especially, when guilt, if any, of his/her is yet to be proved in accordance with law. 11. It is well settled that till the time a person is not found guilty, one is deemed to be innocent. 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 has 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 first-time 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. 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 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. 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.” 14. In Manoranjana Sinh Alias Gupta versus CBI, (2017) 5 SCC 218 , The Hon’ble Apex Court has held as under:- “This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that 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 found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat 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 a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was hi whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (i) Nature and gravity of the accusation; (ii) Severity of the punishment in the event of conviction; (iii) Danger of the accused absconding or fleeing, if released on bail; (iv) Character, behaviour, means, position and standing of the accused; (v) Likelihood of the offence being repeated; (vi) Reasonable apprehension of the witnesses being influenced; and danger, of course, of justice being thwarted by grant of bail. ghlighted.” 15. 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: (vii) Whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (viii) Nature and gravity of the accusation; (ix) Severity of the punishment in the event of conviction; (x) Danger of the accused absconding or fleeing, if released on bail; (xi) Character, behaviour, means, position and standing of the accused; (xii) Likelihood of the offence being repeated; (xiii) Reasonable apprehension of the witnesses being influenced; and (xiv) Danger, of course, of justice being thwarted by grant of bail. 16. 16. In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, petitioner has carved out a case for grant of bail, accordingly, the petition is allowed and the petitioner is ordered to be enlarged on bail subject to his furnishing personal bonds in the sum of Rs.2,00,000/- with one local surety in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, 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 him 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. 17. It is clarified that if the petitioner misuses the liberty or violate any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail. 18. Any observations made herein above shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The bail petition stands disposed of accordingly.