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2023 DIGILAW 356 (HP)

Mukesh Kumar v. State of H. P.

2023-06-17

VIVEK SINGH THAKUR

body2023
JUDGMENT : VIVEK SINGH THAKUR, J. 1. Petitioner herein, is an accused in case FIR No. 215 of 2020 dated 06.09.2020, registered in Police Station Haroli, District Una H.P. under Sections 302 and 323 read with Section 34 of the Indian Penal Code (hereinafter referred to as ‘IPC’ in short) and Sections 25, 27 and 30 of the Arms Act, 1959. As claimed he has been arrested on 09.09.2020 and after remaining in police custody he is now in judicial custody. Challan was presented in the Court on 07.11.2020, and trial is pending adjudication. 2. Status report stands filed, wherein statement of complainant Ashwani Kumar, recorded under Section 154 Cr.P.C. has been reproduced and according to the said statement, complainant-Ashwani Kumar is Panchayat Pradhan, who is having land dispute with Harjot Singh co-accused and his family, but correction of revenue record has not been effected yet and on the disputed land, IPH Department has been constructing irrigation water tank outlets through Contractor. On 06.09.2020, on a call of IPH Contractor, complainant had reached the spot at 9.15 a.m. where Naresh Kumar (co-accused) of IPH Department was also present alongwith Contractor, and Suresh Kumar and Mukesh Kumar (petitioner) sons of accused Harjot Singh alongwith their father were also present. Complainant had objected construction of cement tank for water outlet on the disputed land with a request to construct the same later on, but on this, Naresh Kumar/co-accused overpowered the complainant and Harjot Singh and his sons Suresh Kumar and Mukesh Kumar (petitioner) had started beating complainant with wooden sticks, kicks and fist blows and at that time, Ashwani Kumar (deceased) son of Desh Raj had tried to intervene to stop quarrel. Whereupon, Harjot Singh accused had asked his son Suresh Kumar to bring the gun to kill Ashwani Kumar son of Desh Raj by saying that the said Ashwani Kumar was root cause of the quarrel and thereupon, Suresh Kumar brought the gun and fired a gunshot on the chest of Ashwani Kumar son of Desh Raj and thereafter all accused except Suresh Kumar ran away from the spot. Injured Ashwani Kumar had asked complainant-Ashwani Kumar to run away from the spot as he had received bullet injury. At that time, Suresh Kumar remained on the spot for about 10-15 minutes and when villagers started gathering on the spot, Suresh Kumar also ran away from the spot. Injured Ashwani Kumar had asked complainant-Ashwani Kumar to run away from the spot as he had received bullet injury. At that time, Suresh Kumar remained on the spot for about 10-15 minutes and when villagers started gathering on the spot, Suresh Kumar also ran away from the spot. Injured Ashwani Kumar was shifted by complainant in his vehicle with the help of his sons Chetan, Rajender and Raj Kumar to the Government Hospital for treatment, but he had succumbed to injuries on way to the hospital. Lastly, it is stated that this entire plan had already been conspired by all four accused. 3. As per status report, on the basis of statement of complainant, FIR was registered and investigation was carried on. Besides postmortem of deceased Ashwani Kumar, complainant-Pradhan Ashwani Kumar was also subjected to medical examination and as per final report, Medical Officer on his MLC has opined that injuries received by complainant-Pradhan Ashwani Kumar were simple and blunt. 4. Record, produced on 27.04.2023, was also perused and photocopies of the relevant record were retained. 5. Learned counsel for the petitioner has submitted that in case prosecution case is considered to be true as it is, then also it is evident on the face of statement of complainant recorded under Section 154 Cr.P.C. as well as other material on record that Mukesh Kumar (petitioner) was though alleged to have been involved in beating complainant Ashwani Kumar, but he has no role, rather no knowledge about commission of offence by his brother Suresh Kumar on direction of their father Harjot Singh because as per complainant Ashwani Kumar, Naresh Kumar, Harjot Singh, Suresh Kumar and Mukesh Kumar (petitioner) started beating complainant with sticks, kicks and fist blows and, at that time, deceased Ashwani Kumar tried to rescue complainant Ashwani Kumar, whereupon, Harjot Singh asked his son Suresh Kumar to bring gun and to kill Ashwani Kumar son of Sh. Desh Raj, with further statement that said Ashwani Kumar was root cause of the fight and, upon this, Suresh Kumar brought gun and fired a bullet on the chest of deceased Ashwani Kumar. Desh Raj, with further statement that said Ashwani Kumar was root cause of the fight and, upon this, Suresh Kumar brought gun and fired a bullet on the chest of deceased Ashwani Kumar. It has been contended that from the aforesaid statement of complainant, it is evidently clear that allegation against Mukesh Kumar (petitioner) is that he was involved alongwith his brother and father in beating complainant Ashwani Kumar, but had no role in directing Suresh Kumar or his father either to bring the gun or fire gunshot on the chest of deceased Ashwani Kumar. 6. It has further been submitted that being a family member, during scuffle, presence of Mukesh Kumar was but natural, however such presence cannot be considered a part of conspiracy to kill deceased Ashwani Kumar. It has further been submitted that though charge framed against Mukesh Kumar (petitioner) is of conspiracy to kill deceased Ashwani Kumar, but the said charge is yet to be proved and assessed by the Trial Court, on the basis of evidence on record, but, as on date, statement of complainant is sufficient to consider case of the petitioner for granting bail by treating him differently than his father Harjot Singh and brother Suresh Kumar against whom, in deposition, there is direct allegation that Harjot Singh directed his son Suresh Kumar to bring gun and kill Ashwani Kumar. Whereas, in this part of the incident petitioner Mukesh was having no role. 7. Learned counsel for the petitioner has canvassed that at the time of making statement under Section 154 Cr.P.C. no allegation of conspiracy was levelled against Mukesh Kumar-petitioner for commission of offence under Section 302 IPC. It has been further contended that Mukesh Kumar was present on the spot but he was not a party in killing deceased in either way, but he was involved in scuffle only and even if, it is considered that he had participated in the quarrel, for the record produced in the Court, it is evident that he was having no intention or mens rea to commit the offence under Section 302 IPC by murdering deceased Ashwani Kumar. It is also contended that there is no direct or indirect, overt or hidden act on the part of Mukesh Kumar-petitioner in the commission of murder by Suresh Kumar who fired gunshot on direction of Harjot Singh and in case prosecution story is taken to be true as it is then also, role of Mukesh Kumar- petitioner is limited only to the extent that he was beating complainant-Pradhan Ashwani Kumar and as per prosecution case, it was Harjot Singh, who asked Suresh Kumar to bring the gun to kill deceased and then Suresh brought the gun and fired gunshot on the chest of deceased Ashwani Kumar. 8. It has also been submitted that during investigation, clothes of accused were sent for chemical analysis and in the said report, human blood was detected on the T-shirt of Mukesh and Paijama of Harjot Singh. 9. It has further been submitted that though as per prosecution case, blood stains have been detected on the T-shirt of Mukesh Kumar alias Ballu, but there is no identification of blood group so as to connect these blood stains with deceased Ashwani Kumar and, further that, as there was scuffle between parties, there is possibility of blood stains on T-shirt of petitioner of any person even belonging to the accused party and such presence of blood stains cannot be treated as evidence of conspiracy to commit murder of Ashwani Kumar by other family members of petitioner. It has further been submitted that petitioner is behind the bars since 06.09.2020 and he, for involvement in scuffle, has suffered sufficient detention. Whereas, as per statement of complainant, he (petitioner) has no role in commission of murder and, even if, he is to be convicted for involvement in the fight leading to death of deceased Ashwani Kumar, then also, he shall be liable for lesser sentence than those who are directly involved in the commission of offence under Section 302 of IPC and, therefore, it has been contended that at this stage, petitioner is entitled for bail. 10. Bail petition has been vehemently opposed by Ms. 10. Bail petition has been vehemently opposed by Ms. Ranjna Patial, learned Deputy Advocate General, on the ground that Mukesh Kumar-petitioner is an accused for commission of heinous crime and there is public unrest in the area for commission of offence in broad daylight and, also that Mukesh Kumar-petitioner, in case, is enlarged on bail, would try to influence the investigation as well as witnesses. 11. No doubt, petitioner is an accused in a murder case, however, his involvement and conspiracy on his part is to be established before the trial Court on the basis of evidence on record, but at the same time his right of personal liberty is also relevant to be considered coupled with his alleged role in commission of offence. 12. In the facts and circumstances narrated hereinabove, I find that case of Mukesh Kumar-petitioner can be considered differently than main accused Harjot Singh and his son Suresh Kumar and on giving thoughtful consideration to material placed before me, in its entirety, I am of the opinion that Mukesh Kumar-petitioner is entitled for bail at this stage. 13. Accordingly, petition is allowed and petitioner is ordered to be released on bail in case FIR No. 215 of 2020 dated 06.09.2020, registered in Police Station Haroli, District Una H.P. under Sections 302 and 323 read with Section 34 IPC and Sections 25, 27 and 30 of the Arms Act, on his furnishing personal bond in the sum of Rs. 2,00,000/- with one surety in the like amount, to the satisfaction of the trial Court within three weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also subject to following conditions: (i) that the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required. (ii) that the petitioner 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 them from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses. (iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial. (iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected. (v) that the petitioner shall not misuse his liberty in any manner. (vi) that the petitioner shall not jump over the bail. (vii) that he shall not leave the territory of India without prior information. He shall inform the Police/Court his mobile/landline contact number and shall keep on informing about change in address and contact number, if any, in future. 14. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 15. In case the petitioner violates any condition imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law. 16. Trial Court is directed to comply with the directions issued by the High Court, vide Communication No. HHC/VIG/Misc. Instructions/93-IV-7139 dated 18.03.2013. 17. Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 18. It is made clear that this bail application shall not be treated as precedent at the time of considering bail applications filed on behalf of other co-accused as case of present petitioner is altogether different than co-accused Harjot Singh and Suresh Kumar.