Wahid vs The State Of Madhya Pradesh
2021 Latest Caselaw 5238 MP

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   THE HIGH COURT OF MADHYA PRADESH

                    Cr.A.No.4201/2021
    (Wahid Vs. State of M.P. and another)

Jabalpur, Dated: 09.09.2021
     Mr. Sanjay Gupta, learned counsel for the
appellant.
     Mr. Piyush Bhatnagar, learned Panel Lawyer
for the respondent/State.

Mr. L.N. Sakle, learned counsel for the Objector.

This appeal under Section 14-A of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 has been filed for grant of bail to the appellant, who has been arrested in connection with Crime No.291/2020, for the offences punishable under sections 294, 323, 147, 148, 149, 452, 427, 506, 188, 326, 324, 307, 325, 302, 342, 336 and 34 of IPC and section 3(2)(5B) and 3(2)(5a) & 3-2(V) (A) of SC/ST Act and Section 25 (1-b) of the Arms Act and Section 51(B) of the Disaster Management Act, 2005 registered at Police Station- City Kotwali, District Khandwa.

The appellant is in judicial custody for more than a year.

According to the prosecution's case, there was a fight between two groups in which one

Rajesh died and five others have suffered injuries. Some of the co-accused persons have already been granted bail.

Learned counsel for the Objector and State while opposing the grant of bail, have submitted that recording of evidences are already commenced against the appellant herein and the complainant Gopal has been examined before the trial Court and besides him, two doctors one who carried out the MLC and the other who performed the post-mortem, have been examined before the trial Court. One police witness has also been examined. In all, there are 42 witnesses.

Learned counsel for the Objector has drawn the attention of this Court to the statement of Gopal (PW-4), who is an injured eyewitness and specifically drawn my attention to paragraph 5 of his testimony where the witness says that the appellants; Abdul Gani, Barkat and Salman assaulted the deceased on the head with pipes and wooden stick. Co-accused Sabir assaulted the deceased with a sharp-edged weapon on the shoulder. Co-accused Sakir assaulted the deceased on the hand by a sharp-edged weapon. Co-accused Wahid assaulted the deceased on the palm of his hand with a sharp-edged weapon. These accused persons have also assaulted the sister of the deceased namely; Sheela Bai.

Learned counsel for the Objector has also drawn the attention of this Court to a recent judgment passed by the Supreme Court on 20.04.2021 in Cr. Appeal No.422/21 [Ramesh Bhavan Rathod vs. Vishanbhai Hirabhai Makwana Makwana (Koli) & Anr.] where, by an elaborate order, the Supreme Court had set aside the bail granted to six persons by the High Court. The said judgment has examined thread back the factual aspects of the case. In that case, there were five persons who died in the incident. In paragraph 20 of the Judgment, it appears that what weighed the mind of the Supreme Court is that the High Court missed out the nature and gravity of the crime. The Supreme Court took cognizance of the fact that there were five persons who died homicidal deaths, in the incident and in their case, bails had been granted to them after a period of four months of their incarceration. The Supreme Court also held that there was non- application of mind by the High Court into the material before it while granting the bail. With these submissions, he prays for dismissal of the appeal.

Another judgment of the Supreme Court has been placed before this Court, dated 24.08.2021, in Criminal Appeal No.883/2021 (Harjit Singh vs. Inderpreet Singh @ Inder and another) ,

by which the Supreme Court has set aside the order passed by the High Court of Punjab & Haryana, granting bail to the respondent on the grounds that High Court had not considered the materials germane to the case while deciding the bail application of the respondents.

The facts in the case at hand are important. The incident is stated to have taken place on 18.05.2020. There was a fight between two groups and from the side of the complainant deceased Rajesh appears to have been a collateral victim as revealed by the prosecution's case. Rajesh was not the person who was initially targeted by the accused persons. Their target of ire was Gopal. Deceased Rajesh came there to intercede in the quarrel when the attention of the group turned towards Rajesh who was assaulted allegedly by sticks and pipes on the head by three accused persons and with sharp-edged weapon on the shoulder, and hard and blunt weapons on the other parts of his body. There were also five injured persons in this incident. They are Sheela Bai, Pawan, Gopal, Shiv and Jaipal. Out of these, Sheela Bai has suffered a lacerated wound of parieto-occipital region resulting in the fracture of the frontal bone. As regard the others, who are mentioned hereinabove, they all have suffered lacerated injuries on their head but they have not

suffered any fracture of the underlying bone, therefore, their injuries would come under the catetory of simple injuries, with the exception of Sheela Bai who suffered a grievous hurt. Even otherwise, the doctor has not mentioned that the injuries suffered by Pawan, Gopal, Shiv and Jaipal has been dangerous to life. The post-mortem report of deceased-Rajesh reflects that but for two injures out of nine, remaining seven are simple in nature on non-vital parts of the body. They are as under:-

"1. Abrasion of the size 2.0x2.0 cm present over left cheek region, situated just lateral and below to the left eye.

2. Dark brown contusion over left shoulder area with incision of length 8.0 cm.

3. Contused abrasion present over back right wrist area.

4. Abrasion present over anterior aspect of right wrist area.

5. Abrasion present over dorsal aspect of middle phalanx of left middle finger of hand.

6. Dark brown contusion present over lateral aspect of right thigh, situated 18.0 cm below to the right anterior superior iliac spine.

7. Dark brown contusion present over lateral aspect of left thigh, situated 14.0 cm above and lateral to the left knee joint."

All these injuries prima facie are simple in nature and on non-vital part of the body of the deceased. The 8 t h injury is surgical stitched wound with 05 stitches present over left side of scalp of length 6.0 cm, situated 9.0 cm above to the left ear, 8.0 cm above to midpoint of left eyebrow and 6.0 cm left lateral to the midline of head. This injury does not reveal that there was any fracture of the underlying bone.

Injury No.9 is on the Head:- It is a U-shaped surgical stitched wound with 19 stitches present over right side of scalp of length 34.0 cm, situated 6.5 cm above the glabella, just right lateral to the mid line and ended just anterior to right ear, contusion of scalp found in left parietal area of size 8.0x6.0 cm, mesh with dark area of scalp present in the surgical flap of scalp, surgically cut skull bone of size 14.0x11.0 cm. found missing, dura found intact, SAH (probably Subrachnoid hemorrhage) present over right temporo-parietal area of the brain, brain and cerebellum found soft."

The cause of death is given as cardio respiratory failure as a result of blunt force trauma to the head and its complications. He further says that the injuries present over the body were caused by hard and blunt object. Further observations are that the evidence of surgical interventions was present.

Undisputedly, deceased Rajesh died after 15 days of the incident. Therefore, the question is still left open for the trial Court to consider whether this case would be one under Section 302 of IPC or under Section 304 of IPC.

From the above arguments and discussions, it appears that in the fight, the deceased was in all probability a collateral victim whose death was never intended by the appellants herein. The injuries suffered by the five injured persons prima facie appears to be simple in nature, but the injury suffered by Sheela Bai is a grievous hurt.

As the trial would take a long time to conclude looking to the large number of witnesses to be produced by the prosecution and the fact that the appellant has already completed more than a year as an under-trial and in view of the discussions herein above and the prima facie appreciation of evidence by this Court, the appeal is allowed. It is directed that the appellant herein shall be enlarged on bail upon his furnishing a

personal bond in the sum of Rs.50,000/- (Rupees Fifty Thousand Only) with one solvent surety in the like amount to the satisfaction of the trial Court.

It goes without saying that the observations made are only for the purpose of deciding the bail application and the same shall not influence the learned trial Court in any manner while conducting the trial.

The jail authorities shall have the applicant checked by the jail doctor to ensure that he is not suffering from the coronavirus and if he is, he shall be sent to the nearest hospital designated by the State for treatment. If not, he shall be transported to his place of residence by the jail authorities.

C.C. as per rules.

(ATUL SREEDHARAN) JUDGE pb

Digitally signed by PRASHANT BAGJILEWALE

PRASHANT BAGJILEWALE DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, 2.5.4.20=062bc13272373e2768c883468695ccafcb8f7bf9db7cbd37ad359bc82069bcdf, cn=PRASHANT BAGJILEWALE Date: 2021.09.11 15:16:38 +05'30'