Ashwani Kumar vs State Of Himachal Pradesh

Ajay Mohan Goel, J

By way of this petition filed under Section 439 of the Criminal Procedure Code, the petitioner has prayed for grant of bail in FIR No.338 of 2017, dated 08.10.2017, registered under Section 302 of Indian Penal Code at Police Station Sadar, District Una, H.P.

Brief facts necessary for the adjudication of the present bail petition are as under:­

The petitioner is stated to be in custody since 08.10.2017 in the FIR registered against him, details of which have already been given herein above, registered under Section 302 of the Indian Penal Code.

The case of the prosecution in brief is that on the fateful day, i.e. 7th August, 2017, at about 10.30 PM, accused, i.e. petitioner herein, started creating nuisance and disturbance in the Pandaal and he was asked by one Avtar Chand to maintain silence. However, the petitioner started misbehaving with him and also abused him. He also dared the persons to come out and talk to him in case anyone was having any problem. Further, as per prosecution, thereafter petitioner went away from Pandaal and he was followed by Avtar Chand, Gopal and Raman Kumar. Petitioner started running on the road towards Amb side and at a distance of about 100­150 meters near Vijay Floor Mill, he suddenly turned back, took out a knife and stabbed Avtar Chand on his back, which led to his death in the hospital.

A bail application was earlier also filed by the petitioner for grant of regular bail before the learned Additional Sessions Judge (II), Una, i.e. Bail Application No.210/2019, titled Ashwani Kumar versus State of Himachal Pradesh. Said application was dismissed by the Court of learned Additional Sessions Judge (II), Una, vide order dated 14.08.2019, primarily by holding that eye witnesses had not been examined so far and as the petitioner had committed a heinous crime, therefore, he was not entitled to be released on bail.

Learned counsel for the petitioner has vehemently argued that the petitioner is not guilty of the offence alleged against him and he has been falsely implicated in the case. He has further argued that as of now statements of seventeen witnesses stand recorded, which includes all eye witnesses. Mr. Negi further submits that in case statements of the witnesses are perused, the same would demonstrate that the prosecution has not been able to prove its case against the petitioner. He has further submitted that as of now nothing shall be gained by keeping the petitioner behind the bars because especially as all the eye witnesses stand examined, there is no scope of the petitioner trying to win over or influence any of the prosecution star witnesses. Further, the petitioner is permanent resident of State of Himachal Pradesh and there is no possibility of his fleeing away from justice. Mr. Negi also submitted that in the event of bail, petitioner shall abide by all the conditions imposed by the Court.

Learned Additional Advocate General has argued that taking into consideration the gravity of the offence alleged against the petitioner, this petition deserves to be dismissed. He has submitted that though it is a matter of record that seventeen witnesses have been examined, but as per him, this is not a ground for grant of bail to the petitioner. Learned Additional Advocate General further argued that releasing the petitioner, at this stage, may adversely affect the trial because there is possibility that the petitioner may try to win over the witnesses, whose statements are yet to be recorded. On these basis, he prayed that the petition be dismissed.

I have heard learned counsel for the parties and also gone through the documents appended with the petition as well as order passed by the Court of learned Additional Sessions Judge(II), Una, vide which the bail application filed by the petitioner was dismissed.

Undoubtedly, the offence alleged against the petitioner is grievous in nature. However, fact of the matter remains that whether or not the petitioner is guilty of the offence alleged against him, is a matter of trial and in case the trial Court comes to the conclusion that the accused is guilty of the offence alleged against him, then consequences shall ensue. The petitioner is in custody since 08.10.2017, and as of now, no recovery is to be effected from him. Seventeen prosecution witnesses stand examined, which include all eye witnesses. The Court has also been apprised that two witnesses have been given up by the prosecution. The petitioner happens to be permanent resident of Village and Post Office Dusada, Tehsil Amb, District Una, H.P. In view of the fact that all the eye witnesses have been examined by the prosecution, it cannot be said that as of now there is a possibility that if released on bail, the petitioner may try to win over the eye witnesses as was the apprehension expressed by the learned Additional Sessions Judge (II), Una, while dismissing the bail application of the petitioner, vide order dated 14.08.2019. As far as the apprehension expressed by the learned Additional Advocate General that in the event of his release on bail, the petitioner may try to win over the remaining prosecution witnesses is concerned, it shall be open to the State to approach this Court in case the petitioner violates any of the conditions imposed upon him while releasing him on bail. The petitioner is in custody for the last about two and half years and statements of all the prosecution witnesses have been recorded. Therefore, in my considered view, no fruitful purpose will be served by keeping him in custody. On a query of the Court, the Court has been apprised that there is no previous criminal history of the petitioner.

Accordingly, in view of the discussion made herein above, this petition is allowed and the petitioner is ordered to be released on bail in FIR No. 338 of 2017, dated 08.10.2017, registered under Section 302 of Indian Penal Code at Police Station Sadar, District Una, H.P., on his furnishing personal bond in the sum of Rs. 1,00,000/­ with one surety in the like amount to the satisfaction of the learned ACJM/JMIC, Amb, subject to the following conditions:­

"i) Petitioner shall 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;

ii) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.

iii) He shall not make any inducement, threat or promise 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

iv) He shall not leave the territory of India without prior permission of the Court."

It is clarified that findings which have been returned by this Court while deciding this petition are only for the purpose of adjudication of the present bail petition and learned trial Court shall not be influenced by any of the findings so returned by this Court in the adjudication of this petition during the trial of the case. It is further clarified that in case the petitioner does not complies with the conditions which have been imposed upon him while granting the present bail, the State shall be at liberty to approach this Court for the cancellation of the bail. The petition stands disposed of in the above terms.

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