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2024 DIGILAW 109 (HP)

Happy Kant v. State of Himachal Pradesh

2024-01-12

RAKESH KAINTHLA

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JUDGMENT : Rakesh Kainthla, J. The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of offences punishable under Sections 302, 341, and 323 read with Section 34 of the Indian Penal Code(IPC) registered at Police Station Rampur, District Shimla vide FIR no.45 of 2023 dated 01.04.2023.The petitioner is innocent and he was falsely implicated. There was an altercation between the petitioner, the deceased and his allies, which can be affirmed by the statement of Sang Dass, who was present on the spot. Sang Dass stated that he was sitting with one Daulat Ram. The petitioner came to him and he requested help from Sang Dass. The petitioner stated that two or three boys had looted him and given him beatings, which fact is apparent by the injuries sustained by the petitioner. The deceased was in a drunken state and he fell on the road. The deceased had sustained traumatic brain injuries secondary to blunt injuries which led to the trauma. There was no mens rea on the part of the petitioner and the petitioner acted in self-defence. The petitioner is a permanent resident of District Kullu and there is no chance of his absconding. He will abide by all the terms and conditions, which may be imposed by the Court. Hence, it was prayed that the present petition be allowed and the petitioner be released on bail. 2. The police filed a status report asserting that the informant-Dev Raj made a statement that he was posted as Home and was on night duty Guard on 31.03.2023. He was on duty from 10:00 pm till 2:00 am. He heard the noise of two or three persons shouting. He and Maan Dass went to the place from where the noise was coming. They saw that four or five people were quarrelling with each other. The informant and Man Dass tried to separate the quarrelling people and two persons ran away. One person was lying in injured condition, who revealed his name as Prakash on inquiry. He said that Vicky, Thapa and Rahul were with him and ran away from the spot. The petitioner was with them who had given beatings to Prakash Chand. Prakash Chand fell while running away and sustained injuries. One person was lying in injured condition, who revealed his name as Prakash on inquiry. He said that Vicky, Thapa and Rahul were with him and ran away from the spot. The petitioner was with them who had given beatings to Prakash Chand. Prakash Chand fell while running away and sustained injuries. The petitioner said that these three persons had snatched his money and key, which led to a dispute between the parties. The Police registered the FIR. Prakash was sent for medical examination and he was referred to IGMC, Shimla. He succumbed to his injuries. The Police arrested the petitioner, who revealed on enquiry that he had gone to a new bus stand in his vehicle on the intervening night of 31.03.2023 and 01.04.2023. Three people met him and snatched his money. He sought help from Pawan Kumar and Balbir Negi. Balbir and Pawan searched for those persons on his motorcycle. When the petitioner went ahead of the HRTC workshop, he saw one person, who was hiding behind the bushes. The petitioner and other persons gave him beatings. Prakash sustained injuries in the incident. Pawan and Balbir were also brought to the Police Station and they were interrogated to confirm the story of the petitioner. The police also arrested them. The challan has been prepared and presented before the Court. As per the report of the post-mortem, the deceased had died due to traumatic brain injury, secondary to blunt trauma sustained to the head region. No poison/ethyl alcohol was detected in the report of Chemical examination. The petitioner can intimidate the witnesses and can abscond, in case he is released on bail. The petitioner is involved in the commission of a heinous offence; hence, it was prayed that the present petition be dismissed. 3. I have heard Mr. Ravi Tegta, learned counsel for the petitioner and Mr. Jitender Sharma, learned Additional Advocate General, for the respondent/State. 4. Mr. Ravi Tegta, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The police story also corroborates the version of the petitioner that his money was snatched by three persons, which shows that he was acting in the exercise of his right of private defence of property. 4. Mr. Ravi Tegta, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The police story also corroborates the version of the petitioner that his money was snatched by three persons, which shows that he was acting in the exercise of his right of private defence of property. The right of private defence cannot be weighed on a golden scale and even if the right of private defence was exceeded, the offence punishable under Section 302 of IPC is not made out. The gravity of the offence is no reason to deny bail. Therefore, he prayed that the present petition be allowed and the petitioner be released on bail. He has relied upon the judgments of Kiran versus State of H.P., Cr.MPM No. 748 of 2023 decided on 05.04.2023 and Prabhakar Tewari vs. State of U.P. and Anr, Criminal Appeal No. 154 of 2020 decided on 24.01.2020. 5. Mr Jitender Sharma, learned Additional Advocate General, for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence. It is not correct to say that the gravity of the offence is not to be seen while considering the bail application. The allegations against the petitioner make out a case of murder, which is punishable with the death penalty. The plea that the petitioner was acting in furtherance of his right of private defence is to be proved during the trial and is not to be seen at this stage; therefore, he prayed that the present petition be dismissed. 6. I have given considerable thought to the submissions at the bar and have gone through the records carefully. 7. The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: - 12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that; (a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations; (b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail. (c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge. (d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail. 13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words: “11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are: (a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence. (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [ (2002) 3 SCC 598 : 2002 SCC (Cri) 688] and Puran v. Rambilas [ (2001) 6 SCC 338 : 2001 SCC (Cri) 1124].)” 8. A similar view was taken in State of Haryana vs. Dharamraj 2023 SCC Online 1085, wherein it was observed: 7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus: ‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are: (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.’ 9. Sang Dass stated that the petitioner came to him and requested help. It was submitted that the statement shows that the petitioner was acting in the exercise of his right of private defence. Sang Dass stated that the petitioner came to him and requested help. It was submitted that the statement shows that the petitioner was acting in the exercise of his right of private defence. This submission is not acceptable. Sang Dass further stated that the petitioner had given beatings to one person. Even the interrogation of the accused reveals that the petitioner was looted and thereafter, he, Pawan Kumar and Balbir searched for those persons. Prakash was found hiding in the bushes, who was beaten. Therefore, as per the version of the petitioner, the injuries were not caused, when the petitioner was being looted but after the incident was over and when the petitioner and his friends found one of the persons hiding in the bushes, who had looted the petitioner. It was laid down by the Hon’ble Supreme Court in State of U.P. v. Ram Swarup, (1974) 4 SCC 764 : 1974 SCC (Cri) 674 that the right of private defence is not available for punishing a wrongdoer. It was observed: 14. The right of private defence is a right of defence, not of retribution. It is available in the face of imminent peril to those who act in good faith and in no case can the right be conceded to a person who stage-manages a situation wherein the right can be used as a shield to justify an act of aggression. If a person goes with a gun to kill another, the intended victim is entitled to act in self-defence and if he so acts, there is no right in the former to kill him in order to prevent him from acting in self-defence. While providing for the right of private defence, the Penal Code has surely not devised a mechanism whereby an attack may be provoked as a pretence for killing. 15. Angered by the rebuff given by the deceased while declining to sell the melons, Ganga Ram went home and returned to the market with the young Ram Swarup who, on the finding of the High Court, carried a gun with him. Evidently, they went to the market with a pre-conceived design to pick up a quarrel. What semblance of a right did they then have to be piqued at the resistance put up by the deceased and his men? Evidently, they went to the market with a pre-conceived design to pick up a quarrel. What semblance of a right did they then have to be piqued at the resistance put up by the deceased and his men? They themselves were the lawless authors of the situation in which they found themselves and though the Common Law doctrine of “retreat to the wall” or “retreat to the ditch” as expounded by Blackstone [Blackstone's Commentaries, Book IV, p. 185] has undergone modification and is not to be applied to cases where a victim, being in a place where he has a right to be, is in face of a grave uninvited danger, yet, at least those in fault must attempt to retreat unless the severity of the attack renders such a course impossible. The exemption from the retreat is generally available to the faultless alone. 10. Section 102 of IPC deals with the commencement of and continuance of the right of private defence of the body and reads that the right of private defence or the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence though the offence may not have been committed, and it continues as long as such apprehension of danger to the body continues. 11. Section 105 of IPC deals with the right of private defence of the property and provides that the right of private defence of the body commences when a reasonable apprehension of danger to the property commences. A right of private defence of property against robbery continues as long as the offender causes or attempts to cause to any person death or hurt or wrongful restraint or as long as the fear of instant death or instant hurt or of instant personal restraint continues. 12. It is apparent from the perusal of these two Sections that the right of private defence is available to a person as long as the act is continuing. Once, the act has come to an end, there cannot be any right of private defence and it will be a case of retribution which is not justifiable by law. 12. It is apparent from the perusal of these two Sections that the right of private defence is available to a person as long as the act is continuing. Once, the act has come to an end, there cannot be any right of private defence and it will be a case of retribution which is not justifiable by law. It was laid down about a hundred years ago in Mir Dad v. Crown, 1925 SCC OnLine Lah 317: ILR (1926) 7 Lah 21: AIR 1926 Lah 74: 1926 Cri LJ 929: PLR (1926) 27 Lah 280 that right of private defence is not available when the thief has effected his retreat. It was observed: I shall deal at once with this plea of the right of defence of property stolen. Section 105 of the Penal Code, 1860 supplies the statute law on the subject. That section runs:— “The right of private defence of property against theft continues till the offender has effected his retreat with the property or, either the assistance of the public authorities is obtained, or the property has been recovered.” This I take to mean that as soon as the offender has effected his retreat with the property, no right of private defence of that property against theft subsists, but that, until the offender has so completed his retreat the right of private defence of that property continues until the property has been recovered, i.e., during the retreat of the offender, or until the assistance of the public authorities is obtained. In order to avoid the conclusion that the successful retreat of the thief with the property puts an end to the right of private defence in respect of such property, it has been suggested that the right of defence may be revived and that the stolen property, whenever seen again in the possession of anybody, may be taken by the owner from that person by the use of all the violence, not extending to the causing of death, which may be found necessary. This theory to my mind receives no support from the statute law and, if true, it constitutes a very serious derogation from the principle that no man shall be his own justicer. This theory to my mind receives no support from the statute law and, if true, it constitutes a very serious derogation from the principle that no man shall be his own justicer. I take it that the reason why a person is permitted to take the law into his own hands during the retreat of a thief with stolen property is that there is no doubt regarding the identity of the thief and the right to the property; also because the owner of the property is entitled to maintain his possession and to prevent the completion of the removal of the property from his possession. A very different state of things, however, arises if the owner of a stolen watch be permitted to take the law into his own hands at any subsequent time and to use violence against any person who may or may not be an innocent holder in order to retrieve from his possession a watch which may or may not be the stolen watch. If serious disorders are to be avoided the right of private defence must be strictly confined within the limits fixed by statute. Now, in this case on the showing of the appellants the stolen cattle had been removed from the scene of the theft long before the tracking party set out from their Chak and on their own showing if the complainants were the thieves the stolen cattle had reached the thieves' village; in other words, the thieves had effected their retreat with the stolen property and even if the accused did see their cattle in the complainants' village they were not justified in using violence to recover those cattle, far less in inflicting death for the purpose of recovering them. 13. Therefore, the plea that the petitioner was exercising the right of private defence is prima facie, not acceptable at this stage. 14. It was submitted that the injuries might have been caused by way of a fall. Even if it is accepted that the deceased fell while running away from the petitioner, his running was a result of the beatings given to him by the petitioner and other persons. The fall resulted from running and is a direct consequence of the beatings. The deceased was concealing himself in the bushes and would not have come out and fallen had he not been beaten by the accused and the other persons. The fall resulted from running and is a direct consequence of the beatings. The deceased was concealing himself in the bushes and would not have come out and fallen had he not been beaten by the accused and the other persons. The Courts have been applying ‘but for’ test to determine whether the act of the accused resulted in the prohibited result or not. Under this test, a defendant’s conduct is a cause-in-fact of the prohibited result if the said result would not have occurred “but for” the accused’s conduct. In the present case, but for the beating given by the petitioner and his co-accused, the deceased would not have run and fallen. Thus fall was the result of beatings and not much advantage can be derived from the fall of the deceased. 15. The contents of the FIR clearly show that the petitioner and his friends had given beatings to the deceased. The injuries were caused on the brain secondary to the blunt trauma sustained to the head region. This clearly shows that the injuries were caused on the vital parts of the body, namely, the head and prima facie, the ingredients of the commission of offence punishable under Section 302 of IPC are made out in the present case. 16. It was submitted that the gravity of the offence is not a relevant consideration while granting bail. This is not acceptable. It was laid down by the Hon’ble Supreme Court in Manno Lal Jaswal versus State of Uttar Pradesh, 2022 Live Law Cases (SC) 88 that when the accused attacked the deceased with a deadly weapon, they would be guilty of the commission of offences punishable under Section 302 read with Section 149 of IPC. The nature of the seriousness of the offence was such that would disentitle the accused from the concession of bail. 17. This position was reiterated in Sunil Kumar versus State of Bihar, 2022 Live Law Cases (SC) 89 and it was held that the High Court was not justified in granting bail in a case of murder considering the gravity of the offence. Similar is the judgment in Yashpal versus State of UP, 2023 SCC Online (SC) 347. 18. Thus, the nature and gravity of the offences are relevant considerations to see the entitlement of a person for bail. These facts cannot be ignored by the Court. Similar is the judgment in Yashpal versus State of UP, 2023 SCC Online (SC) 347. 18. Thus, the nature and gravity of the offences are relevant considerations to see the entitlement of a person for bail. These facts cannot be ignored by the Court. The judgments relied upon by the learned counsel for the petitioner are restricted to their facts and do not lay down that the gravity is not to be considered while considering the bail application. Hence, the submission that the gravity of the offence is not a relevant consideration cannot be accepted. 19. It was also submitted that the deceased was under the influence of liquor and the possibility of his falling cannot be ruled out. The report of the post-mortem clearly shows that no Ethyl Alcohol was found in the blood of the deceased, hence, the version that the deceased was intoxicated and fell by himself is not acceptable. 20. No other point was urged. 21. Consequently, the present petition fails and the same is dismissed. 22. The observations made hereinabove are regarding the disposal of this petition and will have no bearing, whatsoever, on the case's merits.