Himachal Pradesh High Court
Amita Sharma vs State Of Himachal Pradesh on 20 December, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Cr. MP (M) No. 2542 of 2022 a/w
Cr.MP (M) Nos.2562, 2563,2564,
.
2565,2746 and 2750 of 2022
Date of Decision: 20.12.2022
-----------------------------------------------------------------------------------------
1. Cr.MP(M) No.2542 of 2022
Amita Sharma ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
2. Cr.MP(M) No.2562 of 2022
Rishi Sharma ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
3. Cr.MP(M) No.2563 of 2022
Ankesh Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
4. Cr.MP(M) No.2564 of 2022
Ashwani ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
5. Cr.MP(M) No.2565 of 2022
Rakesh Kumar ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
::: Downloaded on - 22/12/2022 20:32:18 :::CIS
2
6. Cr.MP(M) No.2746 of 2022
Ritik ...Petitioner
Versus
.
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
7. Cr.MP(M) No.2750 of 2022
Mohan Lal ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
-----------------------------------------------------------------------------------------
Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1 yes.
---------------------------------------------------------------------------------------
For the Petitioner Mr. Ajay Kochhar, Senior Advocate
with Ms. Avni Kochhar and Mr.
Abhinav Mehta, Advocates.
For the Respondent Mr. Sudhir Bhatnagar, Additional
Advocate General.
-----------------------------------------------------------------------------------------
Sandeep Sharma, J. (Oral)
Since all these petitions arise out of the same FIR, they were taken up together for hearing and are being disposed of vide this common order.
2. Bail petitioners, namely Amita Sharma, Rishi Sharma, Ankesh Kumar, Ashwani, Rakesh Kumar, Ritik and Mohan Lal, who are behind the bars since 13/14.10.2022, have approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 82 of 2022, dated 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 313.10.2022, under Sections 302, 341, 323, 147, 148, 149, 506, read with Section 34 of IPC, registered at Police Station Jhakri, .
District Shimla, H.P.
3. Pursuant to the notices issued in the instant bail petitions, respondent-State has filed status report and SI Mohan Joshi has come present alongwith the record. Apart from above, pursuant to order dated 12.12.2022, Investigating Officer has also made available report of FSL with regard to CCTV footage of the alleged incident. Record perused and returned.
4. Close scrutiny of the status report/record reveals that on 13.10.2022, complainant namely, Sahil Negi, who claimed himself to be owner of Sahil Hotel at Rampur, alleged that on 12.10.2022, Mahender Singh as well as his friends gathered at Rampur for celebration of his birthday. He alleged that at around 11.00 PM, they all went to Mahesh Hotel, Jhakri for having their dinner. However, when they reached Mahesh Hotel, security guard refused to give them entry. He alleged that owner of Mahesh Hotel Sh. Rahul Dev Sharma and his nephew Ashish Sharma started hurling abuses and forcibly pulled the key of vehicle of Mahender.
He alleged that when they asked above named persons to return the key, owner of the Mahesh Hotel alongwith his staffs, who were carrying dandas in their hands, gave them beatings. He alleged that though all the persons, save and except Mahender, ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 4 succeeded in fleeing from the spot, to whom subsequently owner of the Mahesh Hotel, Sh. Rahul Dev Sharma and his nephew .
Ashish Sharma alongwith other staff members gave beatings.
Complainant alleged that though they tried to give telephonic call to Mahender but the same was unattended. Complainant alleged that he alongwith other friends came back on the spot to find out whereabouts of the Mahender, but by that time many people had gathered on the spot. He alleged that being afraid of the people gathered on the spot, they went to police Station, Jhakri and thereafter reached on the spot with the police. Complainant alleged that accused, named hereinabove, gave them merciless beatings and as such, appropriate action in accordance with law be taken against them. Police after having completed necessary codal formalities took complainant as well as other injured persons to the medical officer MGMSC, Khaneri for medical examination. Since injured Mahender had suffered various injuries on his body, he was referred to IGMC, Shimla but unfortunately he succumbed to his injuries on his way to IGMC. In the aforesaid background, police though initially arrested owner of Mahesh Hotel, Rahul Dev Sharma and his nephew Ashish Sharma, brother Lal Chand, wife Amita Sharma, Naresh Verma, Bablu , Ritik and Bhupesh, but subsequently on the next day after having recorded the statements of eye witnesses namely, Satish and Shubham it also arrested ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 5 other persons namely, Ashwani, Ankesh, Rishi, Rakesh Kumar, Ashwani and Mohan Lal, who all have approached this Court in the .
instant proceedings for grant of regular bail. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, they have approached this Court in the instant proceedings for grant of regular bail.
5. Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting factum with regard to completion of investigation, submits that though nothing remains to be recovered from the bail petitioners, but keeping in view gravity of the offence alleged to have been committed by them, they do not deserve any leniency and need to be dealt with severely. While making this Court peruse statements of independent witnesses recorded by the police under Section 161 Cr.P.C, learned Additional Advocate General contends that there is overwhelming evidence suggestive of fact that all the bail petitioners were part of unlawful assembly and they all in unison had run behind deceased Mahender with an intention to kill him and as such, it cannot be said that they have been falsely implicated. While making this Court peruse postmortem report of deceased Mahender, learned Additional Advocate General states that large number of injuries were found on the body of deceased Mahender, especially on head and as such, it can be well gauzed that he was not given beating by one or ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 6 two-three persons, rather by all the persons, who have been named in the FIR. While making this Court to peruse CCTV .
footage of the camera installed infront of Mahesh Hotel as well as police Station, Mr. Bhatnagar, contends that all the bail petitioners, especially Amita Sharma can be seen running behind deceased Mahender. He further submits that while deceased Mahender was lying on the road in unconscious condition, bail petitioners, especially Smt. Amita Sharma gave blow of danda and as such, it would be too premature at this stage to conclude that bail petitioners herein had not given beating of any kind on the person of deceased. Lastly, learned Additional Advocate General submits that question with regard to common object and intention, if any, to kill is not to be seen at this stage, rather that is matter of trial and shall be determined by the trial Court on the basis of totality of evidence collected on record by the prosecution. He submits that since there is overwhelming evidence suggestive of the fact that bail petitioners also gave beatings to the deceased, especially statements given by the independent witnesses that entire family of owner of Mahesh Hotel alongwith staff had given beatings to the deceased Mahender, it may not be in the interest of justice to enlarge bail petitioners on bail, who in the event of their being enlarged on bail may not only flee from justice but may tamper with the prosecution evidence.
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 76. Mr. Ajay Kochhar, learned Senior counsel duly assisted by Ms. Avni Kochhar and Mr. Abhinav Mehta, Advocates .
representing the bail petitioners, vehemently argued that bare perusal of material collected on record by the Investigating Agency nowhere suggests prima-facie case, if any, against the bail petitioners, muchless under Section 302 of IPC. Learned senior counsel representing the petitioners while making this Court peruse statements of independent witnesses recorded under Sections 154 Cr.P.C., namely Shubham and Satish, which have been otherwise heavily relied upon by learned Additional Advocate General, states that none of these witnesses specifically named bail petitioners herein, rather these witnesses stated that complainant Sahil alongwith other injured persons including deceased Mahender were gathered infront of Mahesh hotel in drunken condition and they were making noises. Learned counsel representing the petitioners submits that it is quite apparent from the statements of aforesaid witnesses that at first instance complainant alongwith other persons including the deceased Mahender tried to forcibly enter into the hotel, which was closed at that time and when they were stopped by security guard, they started quarreling, as a result of which, owner was forced to come out of the hotel. Though, majority of persons succeeded in fleeing from the spot, but deceased Mahender was caught by the staff and ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 8 was made to sit in the hotel, so that he is handed over to police.
Learned counsel representing the petitioners further submits that it .
has specifically come in the statement of aforesaid independent witnesses that deceased Mahender also succeeded in fleeing from the spot, but he was chased by the accused namely, Rahul, Lal Chand, Amita Sharma, Gaurav and accused Ashish hit him with something, as a result of which, he fell down on the ground and thereafter Lal Chand, Rahul, Ashish and Amita Sharma gave him beatings with fist and sticks. Learned counsel representing the bail petitioners states that though these witnesses stated that other staff members had also reached on the spot, but they never stated that they also gave beatings. While making this Court peruse CCTV footage captured from the camera put on police Station, learned counsel representing the petitioners contends that none can be seen giving beatings to the deceased, who at that time was lying on the road. Learned counsel representing the petitioners persuaded this Court to agree with his contention that in CCTV footage deceased can be seen falling on the ground after being hit by the truck. He further submits that no recovery, if any, of any kind of weapon ever came to be effected by the bail petitioners including Amita Sharma. He submits that it is quite apparent from the story of the prosecution itself that neither there was any motive nor any kind of intention to kill the deceased Mahender, rather all ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 9 the accused, named in the FIR, came out of the hotel with a view to protect their property from the complainant and his friends.
.
Lastly, learned Senior counsel for the petitioners contends that though there is no evidence, worth credence, available on record to connect bail petitioner Amita Sharma with the offence alleged to have been committed by her under Section 302 of IPC, but even then this Court having taken note of peculiar circumstances can proceed to enlarge her on bail giving her benefit of proviso (ii) of Section 437 Cr.P.C, especially in view of the fact that she has two minor children and her entire family including her husband is already behind the bars.
7. Mr. Sanjeev Bhushan, learned Senior counsel representing the complainant, while opposing the prayer made on behalf of the bail petitioners for grant of bail, submits that there is overwhelming evidence available on record suggestive of the fact that bail petitioner namely, Amita Sharma alongwith other bail petitioners, who were staff members of Mahesh Hotel, not only chased deceased Mahender but gave him beatings after his having fallen on the ground. Mr. Bhushan, learned Senior counsel further submits that though in terms of section 437 Cr.P.C, Court can proceed to grant bail to a woman alleged to have committed offence punishable under Section 302 of IPC, but for that purpose, Court is required to see the specific role played by her in the ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 10 alleged incident. In case court is convinced that lady charged with Section 302 IPC actively participated in the alleged incident, no .
benefit under Section 437 Cr.P.C can be extended in her favour. In support of his aforesaid submission, he invited attention of this Court to the judgment passed by Hon'ble Apex Court in Bhoopendra Singh versus State of Rajasthan & another, Criminal Appeal No.1279 of 2021, dated 29th October, 2021.
8. Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident complainant alongwith other injured including deceased Mahender had come to Mahesh Hotel after 11.00 PM for having their dinner but by that time Mahesh Hotel had closed. Since complainant alongwith his friends forcibly tired to enter in the hotel, security guard stopped them but once they started creating ruckus, owner of the hotel came down. Allegedly at that movement altercation took place between complainant party and Ashish son of Lal Chand owner of Mahesh Hotel. Since Ashish allegedly pulled key from the vehicle of deceased Mahender, fight amongst complainant party and accused, named in the FIR, intensified and complainant party save and except deceased Mahender after having seen coming staff on the spot, succeeded in fleeing. One person Mahender, whose car was standing infront of Mahesh hotel, was caught by accused named in the FIR, but ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 11 once he also attempted to run away from the spot, persons namely Ashish, Lal Chand, Rahul, Amita Sharma and Gaurav ran behind .
him carrying dandas/sticks in their hands. Independent witnesses namely, Shubham and Satish, who after having heard noise reached on the spot, deposed to the police under Section 161 Cr.P.C that firstly complainant party created ruckus infront of hotel and thereafter when they were not leaving the spot, owner of the hotel namely, Ashish alongwith other staff started quarreling and thereafter complainant as well as other injured save and except Mahender succeeded in fleeing from the spot. Independent witnesses, named hereinabove, deposed that though at first instance Mahender was also caught by staff of Mahesh hotel but he also succeeded in fleeing. These witnesses stated that owner of the hotel Rahul, Lal Chand and Amita Sharma chased Mahender.
They alleged that Ashish gave blow of something to a boy, who fell on the ground and thereafter owner of the Hotel Rahul, Lal Chand, Ashish and Amita gave him beatings with sticks and kicks. Though, these witnesses stated that entire staff of Mahesh Hotel had reached on the spot but these witnesses nowhere stated that save and except persons namely, Lal Chand, Rahul, Ashish and Amita Sharma gave beatings to the boy lying on the road i.e. deceased Mahender. Shubham in his statement stated that one person namely, Naresh, who was carrying iron road in his hand ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 12 caught Mahender from his neck and asked him about his credential but at that time Mahender was in unconscious condition. Though, it .
is quite apparent from the material adduced on record that on the alleged date of incident altercation/ quarrel took place interse complainant party and owners of the Mahesh Hotel but there appears to be merit in the contention of learned Senior counsel for the petitioners that there is no evidence that save and except persons namely, Lal Chand, Rahul, Ashish, Amita Sharma and Naresh, other persons named in the FIR, gave beatings to deceased Mahender and as such, there is no occasion, if any, to detain other persons, who otherwise being staff members though came on the spot but never gave any kind of beatings to the deceased.
9. At this stage, this court deems it necessary to take note of CCTV footage having seen by it during the proceedings of the case. CCTV footage made available by both the parties, especially police suggests that one person is being chased by few persons including one lady and after some distance that person fell on the ground. Though, after having carefully perused CCTV footage, this Court finds some force in the submission of learned Senior counsel for the petitioners that boy i.e. Mahender fell on the ground after being hit by vehicle but it also appears from the CCTV footage that one person tried to stop Mahender from running by ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 13 putting his leg, as result of which, he fell on the side of the vehicle passing through the road at that time. However, CCTV footage .
nowhere suggests that all the accused, named in the FIR, were giving beatings while deceased Mahender was lying on the road.
No doubt, one or two persons including one lady can be seen hitting person lying on the road with danda/stick but it would be too premature at this stage to conclude that with one blow of stick/danda, if any, given by bail petitioner Amita Sharma, deceased Mahender succumbed to his injuries. Definitely, save and except four and five persons none other can be seen giving any kind of beating to the deceased while he was lying on the ground.
10. Though, aforesaid aspect of the matter is to be decided by the court below in totality of facts and circumstances as well as evidence collected on record by the prosecution, but definitely after having seen CCTV footage, coupled with the statements of independent witnesses namely Shubham and Satish adduced on record, this Court is persuaded to agree with Sh. Ajay Kochhar, learned senior counsel representing the bail petitioners that petitioners herein save and except petitioner Amita Sharma never gave beating, if any, of any kind to the deceased, who unfortunately lost his life in the alleged incident.
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 1411. No doubt, after having heard noises or ruckus being created by the complainant party, staff members came out from the .
hotel and they with a view to protect the property of the hotel may have shown some kind of fear to the complainant party but that may not be sufficient to conclude guilt, if any, of such persons muchless under Section 302 of IPC. Apart from above, this Court finds that no weapon of any kind ever came to be recovered from all the petitioners including Smt. Amita Sharma, who alleged to have given beatings to the deceased Mahender with stick/danda.
Recovery, if any, in the case at hand has been affected from other accused namely, Lal Chand, Ashish, Rahul Dev, Bablu and Naresh, who are already behind the bars and have not applied for the bail.
12. This Court after having perused CCTV footage is of the view that though above named accused can be seen running behind the deceased alongwith other accused, named in the FIR, but after having seen nature of the injuries, as indicated in the postmortem report, it is difficult to digest that deceased Mahender died after being given one blow of stick by Amita Sharma.
Admittedly, in the CCTV footage, as taken note hereinabove, one lady, who may be Amita can be seen giving one blow of danda, but the postmortem report reveals that deceased Mahender suffered multiple injuries on his body. There is no evidence collected on ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 15 record to connect the accused namely, Amita Sharma with all the injuries found on the body of the deceased.
.
13. Though, case at hand is to be decided by the court below in totality of facts, but having taken note of aforesaid glaring aspects of the matter as well as fact that bail petitioner namely Amita Sharma is a mother of two minor children and there is none to take care of them in the house, this Court deems it fit to consider her prayer for bail under proviso (ii) of Section 437 of Cr.P.C, perusal whereof clearly provides that person accused of having committed offence punishable under Section 302 of IPC punishable for life imprisonment or death can be ordered to be enlarged on bail if he is under the age of sixteen years or is a woman or is sick or infirm.
14. At this stage, it would be profitable to take note of judgment passed by Hon'ble Apex Court in Bhoopendra Singh, pressed into service by Sh. Sanjeev Bhushan, learned senior counsel representing the complainant. In the aforesaid judgment, Hon'ble Apex Court while dealing with the case where High Court while extending benefits of proviso under Section 437 Cr.P.C, ordered enlargement of one lady on bail, observed that gravity of offence alleged to have been committed by person seeking benefit of proviso of Section 437 is required to be seen. There cannot be any quarrel with aforesaid proposition of law laid down by the ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 16 Hon'ble Apex Court because admittedly benefit of proviso to Section 437 Cr.P.C.can be extended after having seen specific role .
played by person seeking such benefit. In the case before the Hon'ble Apex Court there was strong evidence that second respondent i.e. lady in that case had actively committed the commission of crime by furnishing the information about the movement of deceased to the killers. Since there was a specific or over act, if any, on the part of the lady in that case, Hon'ble Apex Court reversed the findings given by Hon'ble High Court where it had extended benefits of Section 437 Cr.P.C, while enlarging lady in that case on bail.
15. At this stage, it would be profitable to reproduce Section 437 of Cr. P.C. hereinbelow:-
"437:- When bail may be taken in case of non- bailable offence.
(1) When any person accused of, or suspected of, the commission of any non- bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but-
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a {cognizable offence punishable with imprisonment for three years or more but not less than seven years?;
:Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail it such person is ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 17 under the age of sixteen years or is a woman or is sick or infirm.
Provided further that the Court may also direct that a person .
referred to in clause (ii) be released on bail if it is satisfied that It is just and proper so to do for any other special reason:
Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court.] (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non- bailable offence, but that there are sufficient grounds for further inquiry into his 1 guilt the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail] or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided.
(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under sub- section (1), the Court may impose any condition which the Court considers necessary-
(a) in order to ensure that such person shall attend in accordance with the conditions of the bond executed under this Chapter, or
(b) in order to ensure that such person shall not commit an offence similar to the offence of which he is accused or of the commission of which he is suspected, or
(c) otherwise in the interests of justice.
(4) An officer or a Court releasing any person on bail under sub- section (1) or sub- section (2), shall record in writing his or its 1 reasons or special seasons] for so doing.
(5) Any Court which has released a person on bail under sub- section (1) or sub- section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. (6) If, in any case triable by a Magistrate, the trial of a person accused of any non- bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 18 shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs.
.
(7) If, at any time after the conclusion of the trial of a person accused of a non- bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.
16. In the case at hand, as has been discussed in detail save and except CCTV footage where bail petitioner Amita Sharma can be seen running after deceased Mahender carrying stick in her hand, there is no evidence that she gave any kind of beatings to the deceased. Though, in the CCTV footage one lady can be seen giving one blow of danda on the person lying on the road, but whether that lady was Amita or other person is a fact, need to be established by the prosecution by leading cogent and convincing evidence. Aforesaid fact gains significance in view of the fact that there is no recovery, if any, of weapon allegedly used by Amita, rather recovery of the weapons allegedly used in the incident is from the other persons, who are already behind the bars.(see:- Reeta Devi vs. State of H.P.(Cr.MP(M) No.1870 of 2015), Ram Pyari wife of Sh. Balak Ram vs. State of H.P.(Cr.MP(M) No.1152 of 2014), Abhinay Garg vs. State of H.P. alongwith other connected matters(Cr.MP(M)No.1967 of 2022), Ramjani vs. State of H.P.(Cr.MP(M)No.1303 of 2019) and ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 19 Nisha Devi vs. State of H.P. (Cr.MP(M) No.2306 of 2022) passed by Co-ordinate Bench as well as this Court.
.
17. Having carefully perused the judgment rendered by Hon'ble Apex Court Bhoopendra Singh case(supra), this court finds that same has no application in the instant case because facts are totally different. In the instant case, there is a overwhelming evidence that bail petitioner Amita alongwith other family members and staff members came out of the hotel with a view to protect property from the complainant party while they were unauthorizedly trying to enter in the hotel during night hours. This Court also cannot lose sight of the fact that record clearly reveals that accused named in the FIR also suffered injuries in the alleged incident, meaning thereby complainant party firstly attempted to unauthorizedly entered the hotel and thereafter also gave beatings to the security guard and other family members, as result of which, entire staff came out of the hotel to protect themselves as well as property of the hotel.
18. Though, at this stage, learned Additional Advocate General invited attention of this Court to proviso 4 of Section 437 Cr.P.C to contend that no benefit of this section can be extended to person accused of having committed offence punishable with life imprisonment or death but having perused aforesaid proviso 4, this court finds that court is not estopped from extending benefit of this ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 20 section to accused of having committed offence punishable with life imprisonment or death or imprisonment for seven years or .
more but before doing so, court is required to give proper opportunity of being heard to the public prosecutor, which has been given in the instant case.
19. Though, Mr. Sudhir Bhatnagar and Mr. Sanjeev Bhushan, learned Additional Advocate General and learned senior counsel representing the respondent-State and complainant vehemently argued that gravity of offence alleged to have committed by accused is required to be taken into consideration while considering their prayer for grant of bail, but now it is well settled that while deciding the question of grant of bail or refusal of bail, other factors such as the nature of evidence, the part played by the accused in the commission of offence and the likelihood of the accused absconding or tampering with the prosecution evidence are also required to be taken into account. No doubt, offence punishable under Section 302 of IPC is grave offence for which extreme penalty of death has been provided in law, however, mere gravity of offence and the severity of punishment is no ground for rejection of bail. In this regard, reliance is placed upon the judgment passed by this Court in Jeet Ram versus State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 21"7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him .
the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.
8. In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :
"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 22 vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
.
9. In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :
"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."
10. In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 r : (1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured."
"12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account".
20. Hon'ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his /her guilt is not proved, in accordance with law and as such, this ::: Downloaded on - 22/12/2022 20:32:18 :::CIS 23 Court sees no reason to let bail petitioners incarcerate in jail for an indefinite period during the trial, especially when challan stands .
filed in the competent court of law. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice or may again indulge in such activities, can be best met by putting bail petitioners to stringent conditions.
21. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
22. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 2423. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail .
is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
24. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
25. In view of above, bail petitioners have carved out a case for themselves, as such, present petitions are allowed. Bail petitioners are ordered to be enlarged on bail, subject to their furnishing bail bonds in the sum of Rs.2.00 Lakh each with two local sureties in the like amount each, to the satisfaction of the learned trial Court, besides the following conditions:
::: Downloaded on - 22/12/2022 20:32:18 :::CIS 25(a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance .
by filing appropriate application;
(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) They shall not leave the territory of India without the prior permission of the Court.
26. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
27. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these petitions alone. The petitions stand accordingly disposed of.
A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
(Sandeep Sharma) Judge 20th December, 2022 (shankar) ::: Downloaded on - 22/12/2022 20:32:18 :::CIS