Johny And Anr vs State Of Haryana
2021 Latest Caselaw 3011 P&H

           IN THE HIGH COURT OF PUNJAB AND HARYANA AT
                          CHANDIGARH
(105+206)
                                                CRM-M-39274-2021 (O&M).
                                                Date of Decision:-25.10.2021.

Johny and another

                                                              ......Petitioners

                                     Versus


State of Haryana and another
                                                             ......Respondents

CORAM: HON'BLE MR. JUSTICE VIKAS BAHL

                    ****

Present:      Mr. Amitabh Tewari, Advocate for the petitioners.

              Mr. Praveen Bhadu, AAG, Haryana.

              Mr. Deepender Singh, Advocate for respondent No.2-
              complainant.

                    ****

VIKAS BAHL, J. (Oral)

CRM-34072-2021

This is an application under Section 482 Cr.P.C. for impleaing

Sumit Kumar (complainant) as respondent No.2.

For the reasons mentioned in the application, the same is

allowed and Sumit Kumar, complainant is ordered to be added as

respondent No.2 in the array of parties.

Amended memo of parties is taken on record.

CRM-34073-2021

Application is allowed as prayed for, subject to all just

exceptions.

CRM-M-39274-2021

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CRM-M-39274-2021 (O&M)

This is a first petition under Section 439 of Cr.P.C. for grant of

regular bail to the petitioner in case of FIR No.140 dated 25.04.2021 under

Sections 304 and 34 of IPC, registered at Police Station, Bilaspur,

Gurugram, Haryana.

Brief facts of the case are that the present FIR has been

registered on the complaint of Sumit Kumar s/o Gajraj Singh Chauhan on

the allegation that the petitioners, who are the sons of the uncle of the

complainant along with their mother were getting stones crushed when the

father of the complainant Gajraj Singh asked Johny, petitioner No.1 to cut

the stone at some distance, as the condition of the aunt was not good and,

thereafter, the petitioners picked up a quarrel on this issue and as per the

version of the complainant, the petitioners gave beatings to the

complainant's father on the chest and head with punches and stones along

with their mother Sudesh Pappi, by virtue of which the complainant fell

down on the ground and his hands and feet became cold and thereafter, he

along with his brother Navneet arranged a vehicle and brought him to Paras

Hospital, where the doctors checked him and declared him brought dead.

Initially, the FIR was registered under Section 302 IPC and after the

doctor's opinion, Section 302 IPC was deleted and Section 304 IPC was

added.

Learned counsel for the petitioners has submitted that in the

present case, even from the prosecution version, it is apparent that it is the

complainant's father who came to the petitioners and not the petitioners

who had gone to the complainant's father so as to pick a fight. It is further

submitted that as per the prosecution, a specific opinion was sought by

Hawa Singh, Police Station Bilaspur, Gurugram, from the Medical Officer,

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General Hospital, Gurugram and in this regard, learned counsel for the

petitioners has referred to the letter dated 03.05.2021. The relevant portion

thereof is reproduced hereinbelow:-

"To

The M.O.,

G.H., Gurugram.

Application for giving opinion with regard

to the injury of the decased Gajraj.

Sir,

It is requested that the deceased Gajraj son

of Mool Chand resident of Patti Devraj, Bhora, police

station Bilaspur, Gurugram, has been found to be dead

due to the impact of the punches and stones on his chest

and head. The accused Johney son of Jaikaran, resident

of Bohra Kalan has produced the stone, which he had hit

him during the quarrel, which has been taken into police

possession through a memo. The stone is produced

before you. Kindly opinion as to whether the deceased

Gajraj has died due to the injuries inflicted to him by this

stone or not.

Sd/- Hawa Singh

P.S. Bilaspur

Gurugram.

Viscera has been preserved and report is awaited, any

cause of death and manner cannot be commented at this stage."

It has been argued that a perusal of the said letter would show

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that a specific opinion had been sought as to whether the deceased had died

due to the injuries inflicted upon him by the said stone or not. The response

given by the Medical Officer vide letter dated 08.07.2021 (Annexure P-6)

has also been referred to. The relevant portion of the said letter is

reproduced hereinbelow:-

"To

The M.O.,

G.H., Gurugram

Application for giving opinion with regard to the

injury of the deceased Gajraj.

It is requested that Gajraj son of Mool Chand,

resident of Bohra Kalan, police station Bilaspur, Gurugram has

died due to the hitting of stone. During the investigation, the

accused Johney son of Jaikaran has produced the stone, which

was hit during the quarrel, which has been taken into police

possession through a memo. The Histopatholigical report of

the deceased Gajraj has been received from PGIMS, Rohtak.

After perusing the report, kindly opine how the deceased Gajraj

has died.

Sd/- Hawa Singh P.S. Bilaspur Gurugram

PMR DM/PHC/205/21

08.07.2021

On review of Histopathological report No.Path/777 dated

18.05.2021, stating sections from heart show features of

Ishemic heart disease and both coronaries show moderate

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atheroscterocis alongwith ecdyma and congestion in lungs. The

Board is of the opinion that the cause of death is 'shock' due to

heart/coronary artery disease."

Learned counsel for the petitioners has highlighted the fact that

the said response would show that it has not even been remotely stated that

the death had been caused due to the injuries inflicted upon the deceased by

the stone, rather, the opinion of the doctor is that the cause of death is

"shock due to heart/coronary artery disease". It is, thus, submitted that as

per the said medical report, it is a case of natural death. It is further

submitted that the petitioners were not armed with any weapon and, thus, it

is apparently a case where the incident took place in the heat of the

moment. It is also submitted that there is no opinion of the doctor to even

remotely show that any of the injuries were either dangerous to life or were

grievous in nature and that there was no injury on the chest of the deceased

although, as per the allegations in the FIR, injuries were alleged to have

been given on his chest. It is submitted that the petitioners have been in

custody since 25.04.2021 and the challan in the present case has already

been filed and the petitioners are not involved in any other case and the trial

is likely to take time and there are as many as 17 witnesses and none of

them have been examined. It is further submitted that the petitioners had

no knowledge about the medical condition of the deceased and has referred

to the FIR to state that even as per the first version, there was no allegation

that the petitioners were aware about the medical condition of the deceased.

Learned counsel for the petitioners has relied upon a judgment of the Delhi

High Court reported as 2015 SCC OnLine Del 9756 titled as Aas

Mohammad Etc. Vs. State, to contend that even in a case wherein the

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accused had picked up a bag (theli) of weights and had given blows with it

as well as fist blows on the chest and abdomen of his father Nek Shah and

the death had been stated to be caused due to coronary artery disease, it was

observed that offence under Section 304 of IPC was not made out.

On the other hand, learned State counsel as well as Mr.

Deepender Singh, learned counsel appearing for respondent

No.2/complainant, have opposed the petition for grant of regular bail. It

has been contended on their behalf that in the present case, there were four

injuries caused to the deceased, one being on the right elbow, another being

on the right knee and two abraded bruises each on the left side of forehead

and it has also been submitted that in fact there was a fissure fracture in the

base of skull of the deceased. It is submitted that as per the statement of

Navneet, the other son of the deceased Gajraj Singh Chauhan recorded

under Section 161 Cr.P.C., it had been stated that the deceased had got a

stunt placed in his heart and the entire family of the petitioners was aware

about it. It is further submitted that although the said deceased had gone to

the petitioners' party asking them to stop the work of stone cutting but there

was no overt act committed by the said deceased and, thus, the petitioners

are solely responsible for the incident. It is also submitted that on account

of the injuries, shock had been suffered by the deceased and it is on account

of the same that the deceased had died. Reference has also been made to

the report of the Department of Pathology, PGIMS, Rohtak, at page 35 of

the paper book to show that there was a stunt in the heart of the deceased.

Further reference has been made to Explanation 1 to Section 299 of IPC to

contend that in case a bodily injury has been caused to another who is

laboring under a disorder, disease or bodily infirmity, and thereby

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accelerates the death of that other, shall be deemed to have caused his death

and that in the present case, by beating the deceased with stones, the death

of the deceased had been accelerated. It is also submitted that there was a

fissure fracture on the base of the skull as per the post-mortem report

(Annexure P-3) and even though there is no opinion as to whether the said

injury was dangerous to life or not and if it was grievous or not, but as per

the provisions of Section 320 IPC, a fracture would come within the

meaning of grievous injury.

Learned counsel for the petitioner, in rebuttal, has submitted

that the statement of Navneet which had been recorded is an improvement

from what has been stated in the FIR, inasmuch as in the FIR, it had not

been stated that the petitioners had the knowledge that there was a stunt in

the heart of the deceased. It is further submitted that even from the

prosecution case it is not coming out clearly as to whether the said Navneet

was even a witness to the alleged occurrence or not. It is also submitted

that till the time there is an opinion of the doctor that a particular injury is

dangerous to life, the provision of Section 307 IPC would not be attracted

and, moreso, even assuming an injury is grievous in nature, at best the

provision of Section 325 IPC, which is bailable, would be attracted. It is

also submitted that the version of the complainant stands diluted, inasmuch

as a role had been attributed to the mother of the petitioners but, however,

the mother had been exonerated during investigation.

This Court has heard the learned counsel for the parties.

A perusal of the prosecution version would show that it is the

deceased who had stopped the petitioners from cutting the stones at the

place where the petitioners were cutting the same and had asked them to

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do the same at some distance. In the FIR, it has not been stated that the

petitioners had the knowledge that the deceased had a heart problem or had

stunt in the heart, rather, it has been stated in the FIR that condition of the

wife of the deceased was not good. A perusal of the letters dated

03.05.2021 and 08.07.2021, which have been reproduced hereinabove

would show that there was a specific query which had been put by Hawa

Singh, Police Station Bilaspur to the Medical Officer, General Hospital

Gurgaon, as to whether the deceased had died due to the injuries inflicted

upon him by the stone or not and in response, there is nothing which has

been stated by the said Medical Officer to the effect that the deceased had

died due to the injury caused by the stone, rather, the opinion was that he

had died on account of shock due to heart/coronary artery disease. Even

from the medical documents relied upon by both the parties, it is clear that

there was a stunt in the heart of the deceased. It would be a moot point

during trial as to whether the petitioners had the knowledge of the said heart

condition of the deceased or not. It would also be a moot point as to

whether in the present case, the injury which is alleged to have been caused

to the deceased had any relation to the death of the deceased or it was a

case of natural death. The medical opinion, as it stands today, in addition to

the fact that the petitioners have been in custody since 25.04.2021 and the

challan has been filed in the present case and there are as many as 17

witnesses and none of them have been examined and the trial is likely to

take time moreso, on account of the pandemic situation and also the fact

that the petitioners are not involved in any other case and the fact that the

mother of the petitioners who was also initially involved in the incident, has

been declared to be innocent during investigation, would entitle the

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petitioners to grant of regular bail and, thus, the present petition deserves to

be allowed.

Accordingly, the present petition is allowed and the petitioners

are ordered to be released on bail on their furnishing bail/surety bonds to

the satisfaction of the concerned trial Court/Duty Magistrate and subject to

the fact that they are not required in any other case.

However, nothing stated above shall be construed as a final

expression of opinion on the merits of the case and the trial would proceed

independently of the observations made in the present case which are only

for the purpose of adjudicating the present bail application.

(VIKAS BAHL) JUDGE October 25, 2021.

sandeep
Whether speaking/reasoned:-                                        Yes/No
Whether Reportable:-                                               Yes/No




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