Himachal Pradesh High Court
Jitender Kumar vs 2 on 9 February, 2024
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr. MP (M) Nos. 2965, 2966 and
2967 of 2023.
.
Reserved on: 02.02.2024
Date of Decision: 09.02.2024.
1. Cr.MP(M) No. 2965 of 2023
Jitender Kumar ...Petitioner
Versus
2.
State of Himachal Pradesh
Cr.MP(M) No. 2966 of 2023
r to ...Respondent
Tek Chand ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Chain Lal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
Coram
Hon'ble Mr Justice Rakesh Kainthla, Vacation Judge.
Whether approved for reporting?1 Yes.
For the Petitioner(s) : Mr. Ajay Kochhar, Senior Advocate
with Mr. Anubhav Chopra and
Mr. Varun Chauhan, Advocates.
For the Respondent/ : Mr. Sumit Sharma, Advocate General
State
Whether reporters of Local Papers may be allowed to see the judgment? Yes.
Rakesh Kainthla, Vacation Judge
Danish informed the Police Station Tissa on
.
10.8.2023 that 2-3 persons were quarrelling with his father due
to which his father became unconscious. The police visited the
spot to verify the correctness of the information and found the
dead body of Sukhdev-Danish's father. Informant-Meenu told
the police that on 10.8.2023, at around 10:30-10:45 am, she and
her father were sitting in their house when Jitender came to the
house and asked Sukhdev (deceased) to come out of the house to
discuss something. Sukhdev came out of the house. The
informant followed her father. Chain Lal, Jitender Kumar and
his father Tek Chand were present near the lavatory. They
inquired from Sukhdev as to why he had constructed the stairs
on their land. Sukhdev told them to discuss the matter and in
case it was found out that stairs had been constructed on their
land, he would remove them. All of them got infuriated. Chain
Lal pushed Sukhdev and he fell. Chain Lal, Jitender Kumar and
Tek Chand gave beatings to Sukhdev with kicks and fist blows.
The informant shouted for help. Chain Lal pushed her. He told
her that she was a kid and she should stay away. Danish reached
the spot and he tried to rescue his father Sukhdev but he was
also beaten. Sukhdev became unconscious. Chain Lal threatened
to kill Sukhdev. People gathered on the spot and found that
.
Sukhdev had died. The police registered the FIR and conducted
the investigation. The Medical Officer found a contusion on the
right side of the face lateral to the eye. The police arrested
petitioners Chain Lal, Jitender Kumar and Tek Chand. As per the
report of the Medical Officer, who conducted the postmortem
examination, the cause of the death was acute coronary
insufficiency, which could have been caused due to a scuffle or
sudden provocation when the person already had a heart
problem. The police prepared the challan and presented it before
the Court.
2. The petitioners have filed the present petitions for
seeking regular bail. It has been asserted that the petitioners are
innocent and they were falsely implicated. They have roots in
the society and there is no apprehension of their absconding.
They would abide by all the terms and conditions, which may be
imposed by the Court. Hence, it was prayed that the present
petitions be allowed and petitioners be released on bail.
3. The State filed a status report reproducing the
contents of the FIR and outlining various steps taken during the
.
course of investigation.
4. I have heard Mr Ajay Kochhar, learned Senior
Advocate assisted by Mr Anubhav Chopra and Mr Varun
Chauhan, learned counsel for the petitioners and Mr Sumit
Sharma, learned Deputy Advocate General for the respondent-
State.
5. Mr. Ajay Kochhar, learned Senior Advocate for the
petitioners submitted that the petitioners are innocent and they
were falsely implicated. There is no evidence that the petitioners
knew about the medical condition of the deceased in the absence
of which they cannot be held liable for the commission of an
offence punishable under Section 302 of IPC. He has relied upon
the judgments in Banta Singh Vs. State 1995 (0) RLW Rajasthan
157, Putti Ram Vs. State 1969 Cr.LJ 531, Ramrakh Vs. State 1999 Cr.LJ
3001, Mohinder Vs. NCT 2013 (4) JCC 2596 and Dhula Vs. State Cr.
Appeal No. 114 of 2019, decided on 21.1.2021 in support of his
submissions.
6. Mr. Sumit Sharma, learned Deputy Advocate General
for the respondent-State submitted that the petitioners gave
.
beatings to the deceased who died due to coronary insufficiency.
They were involved in the commission of a heinous offence and
should not be released on bail. Hence, he prayed that the present
petitions be dismissed.
7. I have given considerable thought to the submissions
at the bar and have gone through the records carefully.
8. The Hon'ble Supreme Court had 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. 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 granting 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. 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].)"
9. 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.'
10. As per the status report, the deceased died due to
acute coronary insufficiency, which could have been caused due
to the scuffle or sudden provocation under some situation like a
person having a heart problem. This status report shows that
the deceased would not have died but for the heart problem
suffered by him. There is nothing in the status report to show
that the petitioners were aware of the fact that the deceased was
suffering from some heart problem. In Banta Singh (supra) and
Ram Rakh (supra), the deceased died due to the beatings given to
him leading to the rupture of his enlarged spleen. It was held
that in the absence of any evidence that the accused knew about
the fact that the deceased was suffering from an enlarged
spleen, they cannot be held liable for the commission of an
offence punishable under Section 302 or 304 of IPC but only for
the commission of an offence punishable under Section 323 of
IPC. Similarly, in Putti Lal (supra), the deceased died due to the
rupture of the heart on account of his old age. There was no
.
evidence that accused persons knew about the enlargement of
the heart. It was held that the accused cannot be held liable for
the commission of an offence punishable under Section 302 of
the IPC and he can only be held liable for the commission of an
offence punishable under Section 325 of IPC.
11. In Mohinder (supra), the deceased died due to shock
consequent to cirrhosis of the liver as a result of physical
assault. There was no evidence that the accused knew that they
were likely to cause death by infliction of the injuries. It was held
that the accused cannot be held liable for the commission of an
offence punishable under Section 304(2) of IPC but only for the
commission of an offence punishable under Section 323 of IPC.
12. In Dhula Ram (supra) the person died due to cardiac
arrest. No internal injuries were found and it was held that the
case would be covered under Section 323 of IPC and not Section
304 of IPC.
13. In the present case, the status report shows that only
a contusion on the right side of the face lateral to the eye was
found. No internal injuries have been mentioned; therefore,
prima facie, it is highly doubtful that the petitioners can be held
.
liable for the commission of an offence punishable under
Section 302 or 304(2) of IPC.
14. The petitioners have been in custody since 10.8.2023.
Their bail applications have been opposed on the ground that
the offence alleged against the petitioners is heinous which
prima facie is not correct as found out above. No useful purpose
would be served by detaining the petitioners in custody.
Consequently, the present petitions are allowed and the
petitioners are ordered to be released on bail subject to their
furnishing bail bonds in the sum of ₹50,000/- each with two
sureties each to the like amount to the satisfaction of the
learned Trial Court. While on bail, the petitioners will abide by
the following terms and conditions: -
(i) The petitioners will join the investigation as and
when directed to do so by means of a written
hukamnama.
(ii) The petitioners will not intimidate the witnesses nor
will they influence any evidence in any manner
whatsoever.
(iii) The petitioners shall attend the trial in case a charge
sheet is presented against them and will not seek
unnecessary adjournments.
.
(iv) The petitioners will not leave the present address(es)
for a continuous period of seven days without
furnishing the address of intending visit to the SHO,
the Police Station concerned and the Trial Court.
(v) The petitioners will furnish their mobile numbers,
and social media contacts to the Police and the Court
and will abide by the summons/notices received from
the Police/Court through SMS/WhatsApp/Social
Media Account. In case of any change in the mobile
number or social media accounts, the same will be
intimated to the Police/Court within five days from
the date of the change.
15. It is expressly made clear that in case of violation of
any of these conditions, the prosecution will have the right to
file a petition for cancellation of the bail.
16. The observation made herein before shall remain
confined to the disposal of the petitions and will have no
bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla)
Vacation Judge
9th February, 2024
(Chander)
