Madhya Pradesh High Court
Tularam Kushwaha vs The State Of Madhya Pradesh on 20 October, 2015
1
M.Cr.C. No. 9819/2015
(Tularam Kushwah Vs. State of M.P.)
20.10.2015
Shri Anil Sharma, Advocate with Shri Navnidhi
Parhariya, Advocate for applicant.
Shri B.K. Sharma, Public Prosecutor for
Respondent/State.
Case Diary is perused.
Learned counsel for the rival parties are heard. The applicant has filed this 2nd repeat bail application u/S 439, Cr.P.C. for grant of bail. The applicant has been arrested by Police Station Gohad, District Bhind in connection with Crime No.110/2015 registered in relation to the offences punishable u/Ss. 302, 307, 147, 148, 149, 294 of IPC and Sec 25/27 of Arms Act.
Learned Public Prosecutor for the State opposed the application and prayed for its rejection by contending that on the basis of the allegations and the material available on record, no case for grant of bail is made out.
This second repeat bail application has been filed after rejection of the earlier one which was dismissed on merit on 27.08.2015 in M.Cr.C. No. 8956/2015.
The applicant is in custody since 26.04.2015 2 M.Cr.C. No. 9819/2015 chargesheet has since been filed and trial is at initial stage.
The applicant who is alleged with offence of murder has raised the new ground of grant of bail to the co-accused Sunil on 08.10.2015 to seek bail in the present 2 nd repeat bail application.
The order of co-accused Sunil who was granted bail on 08.10.2015 discloses the reason that the case of Sunil was considered to be distinct fromthe case of the applicant by finding that Sunil was wielding Pharsa, but none of the two deceased Atar Singh and Gowardhan sustained incised injury as per MLC or the post-mortem report.
Learned counsel for the applicant has drawn the attention of this Court to the variance which gets reflected by a comparative assessment of the MLC of Atar Singh conducted on 26.04.2015 and his post-mortem conducted on 03.05.2015. It is pointed out that the MLC of 26.04.2015 indicates only one injury in the nature of lacerated wound on the skull mid line, whereas, the post-mortem report reflects six injuries including two stitched wounds.
In this factual background, it is contended that due to vast variance between the MLC and the post-mortem report in regard to number and nature of injuries found, the 3 M.Cr.C. No. 9819/2015 possibility of injuries shown in the post-mortem report not being attributed to the applicant cannot be ruled out. It is further submitted that the lacerated wound opined in the MLC is on the skull mid-line, whereas, the post-mortem report does not disclose any injury on the skull mid-line.
Perusal of the post-mortem report reveales that fracture was found on the parietal and occipital region, but the post-mortem report does not mention the term "mid-line"
which finds mention in the MLC.
True it is, that the term "skull mid-line" is not mentioned in the post-mortem report, but if the anatomy of human body is seen, the left parietal and the right parietal bone join at the top of skull which in common parlance is the mid-line or the suture joining the two parietal bones. Since the post-mortem report reflects fracture of occipital and parietal bones, the MLC mentioning skull mid-line cannot be treated to be in total variance to the MLC.
The parity is being drawn with the case of Sunil by contending that the findings that co-accused Sunil was wielding a pharsa only and since there were no incised injuries, he was granted bail. The prosecution story indicates that the said co-accused Sunil has also been attributed with 4 M.Cr.C. No. 9819/2015 causing injury with lathi, besides wielding a pharsa and therefore, it is contended by the learned counsel for the applicant that the case of the applicant who was wielding pharsa and used the same is similar to that of Sunil.
The contention of the learned counsel for the applicant on the question of parity with the case of Sunil appears to be correct that the prosecution story discloses that Sunil was not only wielding pharsa, but also wielding a lathi and was seen assaulting the deceased with lathi and therefore the possibility of co-accused Sunil inflicting fatal injury cannot be ruled out. Thus, the case of Sunil in fact was more or less at par with the case of the applicant.
However, the case of the applicant is dismissed on the ground that wielding and using of lathi has led to causing of head injury which was lacerated wound, which can very well be caused by the weapon lathi.
In the given scenario, the order of enlargement of the co-accused Sunil appears to be based on wrong assessment of facts as Sunil also alleged with causing injury with lathi. The said order of enlargement on bail of co- accused Sunil on 08.10.2015 is per incurium and thus has no precedential value.5 M.Cr.C. No. 9819/2015
In view of the above, this Court is of the considered view that there is no new circumstance arising in the present 2nd repeat bail application as the applicant has also been found to be wielding a lathi and assaulting with the same and the fatal injury on the head i.e. fracture could have been caused by lathi and thus, can be attributed to the applicant.
Accordingly, this 2nd repeat bail application u/S 439 Cr.P.C. deserves to be and is hereby rejected.
(Sheel Nagu) Judge sh/-