Bhalla vs State of Rajasthan

Prashant Kumar Agarwal, J.—1. The accused-petitioner has filed this second application for grant of bail under Section 439 Cr.P.C. in respect of FIR No. 46/2014 registered at Police Station Kudgaon (District Karauli) for the offences under Sections 143, 323, 341, 354 and 307 IPC. After investigation charge-sheet has already been filed against petitioner, Rajesh @ Munna and Israr for offences under Sections 341, 323, 325, 450, 326, 307 read with Section 34 IPC. Allegation against the petitioner and co-accused is that they entered into common intention to cause death of Shri Hemraj and in pursuance of the same, inflicted injuries to him. The first application filed by the petitioner for grant of bail under Section 439 Cr.P.C. was dismissed by this Court on merit vide a reasoned order dated 18.12.2015 at the stage when the case was under investigation. At that time this fact was also taken into consideration by this Court that benefit of bail has already been granted to the almost similarly situated co-accused-Shri Rajesh @ Munna by the Coordinate Bench of this High Court and although one of the injury found on the head of injured-Shri Hemraj has been opined to be dangerous to life by the doctor but there is no further opinion to the effect that the said injury is sufficient to cause death in the ordinary course of nature. The second application filed by the petitioner for grant of bail under Section 439 Cr.P.C. has been dismissed by the Sessions Judge, Karauli vide order dated 7.1.2016 after taking into consideration the nature of injury, the role attributed to the petitioner in the incident and also his criminal antecedents.

It was submitted by the learned counsel for the petitioner that benefit of bail has already been granted to almost similarly situated co-accused-Shri Rajesh @ Munna by the Co-ordinate Bench of this High Court and, therefore, on the ground of parity, petitioner is also entitled to be treated in the same manner more particularly in view of the fact that only one injury on the head of injured-Shri Hemraj has been opined to be dangerous to life and from the evidence available on record it is not clear who is actual author of this injury. It was submitted that it is well settled legal position that if a co-accused has been extended benefit of bail even by a Co-ordinate Bench, the same benefit must also be granted to the similarly situated co-accused so as to maintain consistency in the orders. It was further submitted that although one of the injury has been opined to be dangerous to life, but no further opinion has been given by the doctor that the same was sufficient to cause death in the ordinary course of nature or it was likely to cause death and in absence of such opinion offence under Section 307 IPC cannot be said to be made out even prima facie. It was also submitted that as per statements of some of the independent prosecution witnesses recorded during the course of investigation all the three accused, against whom charge-sheet has been filed, inflicted injuries to the head of injured-Shri Hemraj and no one has attributed injury No. 1 to the present petitioner whereas according to some of the witnesses, the petitioner did not inflict any injury to Shri Hemraj. It was further submitted that if the intention of the petitioner would have been to cause death of Hemraj, he would have used to sharp side of the weapon to cause injury and he would have repeated the blows but the same was not done by him. It was also brought to the knowledge of the Court that lacerated wound has been found on the head of the injured although use of sharp edged weapon has been attributed.

In support of his submissions, learned counsel for the petitioner relied on the cases of State of Rajasthan v. Durga & Anr. reported in 1979 Cr.L.R. (Raj.) 629, Ram Singh & Ors. v. The State of Haryana reported in , JT 1998 (3) SC 167, Madhu v. The State of Rajasthan reported in 1981 RCC 29, Ganga Singh v. The State of Rajasthan reported in 1981 RCC 135, G.S. Walia v. State of Punjab & Ors. reported in , AIR 1998 SC 2857, Surja v. State of Rajasthan reported in 1986 RLW 325 and Dharamveer v. State of Rajasthan reported in , JT 2000 (10) SC 318.

On the other hand, learned Public Prosecutor assisted by learned counsel for the complainant submitted that all the grounds raised on behalf of the petitioner have already been considered by this Court at the time of dismissal of the first application filed on behalf of the petitioner and thereafter there is no substantial change in the facts and circumstances of the case except that charge-sheet has been filed after investigation. It was also submitted that while considering the first application statements of all the witnesses recorded during the course of investigation were considered by the Court. It was further submitted that doctor who has medically examined the injured-Shri Hemraj is yet to be examined as a witness during trial and he may clarify whether the injury No. 1 found on the head of the injured-Shri Hemraj was sufficient in the ordinary course of nature to cause death or not. Otherwise also, once the injury has been opined to be dangerous to life there was no further necessity for the doctor to opine that the same was also sufficient in the ordinary course of nature to cause death.

I have considered the submissions made on behalf of the respective parties and the material made available on record as well as the evidence collected during investigation which has been placed on record by way of charge-sheet and also the relevant legal provisions and the case law.

As per evidence collected during investigation, which has now taken the shape of charge-sheet, petitioner and co-accused-Shri Rajesh @ Munna and Israr were found to inflict injuries to injured-Shri Hemraj. It is the case of the prosecution that petitioner and co-accused-Shri Rajesh @ Munna inflicted injuries on the head of injured-Shri Hemraj using sharp edged weapons while the third accused-Shri Israr inflicted injury on other part of body of Shri Hemraj. In his statement recorded under Section 161 Cr.P.C. injured-Shri Hemraj has also stated about an incident allegedly occurred on one day prior to the present incident in which petitioner was actively involved and in that incident oral altercation took place between him and injured-Shri Hemraj. According to injured on previous day petitioner fired at him but it missed. He has further stated that on the date of incident i.e. 6.5.2014 at 5-6 a.m., when he was sleeping in the ''Varamada'' of his house petitioner and other persons came there and at that time petitioner was having a gun and "Farsa" with him. According to injured injury was inflicted by petitioner on his head by "Farsa", whereas co-accused-Shri Rajesh @ Munna inflicted injury on his head by sharp edge of an axe and co-accused-Shri Israr inflicted injury with a lathi. Some of the witnesses examined during investigation although have attributed injury to Shri Hemraj by co-accused-Shri Rajesh @ Munna with an axe and by co-accused-Shri Israr with a lathi but no specific role has been attributed to the petitioner by these witnesses. It is to be noted that statements of all these witnesses have been recorded either on 24.8.2014 or 25.8.2014 i.e. more than two months after the said incident. As per injury report dated 6.5.2014 as many as five injuries were found on the body of the injured-Shri Hemraj and three of them were on the head. It is to be noted that the injured-Shri Hemraj was again examined after operation and in this regard fresh injury and x-ray reports dated 16.5.2014 were prepared. As per fresh injury report all the above three injuries have been opined to be grievous in nature and injury No. 1 has further been opined to be dangerous to life.

In the aforesaid factual scenario it has to be first seen whether Section 307 IPC has application. Section 307 IPC reads as below:--

"Whoever does any act with such intention or knowledge, and under such circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine; and, if hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned."

Hon''ble Supreme Court in the case of Vasant Vithu Jadhav v. State of Maharashtra reported in , 2004 Cr.L.J. 1786 has held that "To justify conviction under Section 307 IPC, it is not essential that bodily injury capable of causing death should have been inflicted. Although, the nature of injury actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, such intention may also be deduced from other circumstances and may even, in some cases, be ascertained without any reference at all to actual wounds. The section makes a distinction between an act of the accused and its result, if any. Such an act may not be attended by any result so far as the person assaulted is concerned, but still there may be cases in which the culprit would be liable under this Section. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the person assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there is present an intent coupled with some overt act in execution thereof. It is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act in execution thereof." In the facts of the case Hon''ble Supreme Court held that it is not correct to acquit an accused of the charge under Section 307 IPC merely because the injuries inflicted on the victim were in the nature of a simple hurt.

Similarly, Hon''ble Supreme Court in the case of Hari Mohan Mandal v. State of Jharkhand reported in , 2004 Cr.L.J. 3112 has held that it is sufficient to justify a conviction under Section 307 if there is present an intent coupled with some overt act. It is not essential that bodily injury capable of causing death should have been inflicted. If the injury inflicted has been with the avowed object or intention to cause death, the ritual nature, extent or character of the injury or whether such injury is sufficient to actually causing death are really factors which are wholly irrelevant for adjudging the culpability under Section 307 IPC. The Section makes a distinction between the act of the accused and its result, if any. The Court has to see whether the act, irrespective of its result, was done with the intention or knowledge and under circumstances mentioned in the Section. In that case Hon''ble Supreme Court found the conviction of accused proper for offence under Section 307 IPC although one injury inflicted on the body of victim was grievous in nature and it was caused on the vital part of the body.

In the case of G.S. Walia v. State of Punjab & Ors. (supra), Hon''ble Supreme Court converted the conviction of the accused of that case for offence under Section 302 IPC to for offence under Section 325 IPC by the reason that medical evidence was not showing that either injuries were sufficient to cause death or likely to cause death and no attempt was made by the accused to cause serious injuries on vital part of body of the deceased.

In the case of Madhu v. The State of Rajasthan (supra) learned Single Bench of our High Court converted the conviction of accused of that case from offence under Section 304 Part I IPC to II Part of Section 304 IPC by the reason that the occurrence took place all of a sudden and the accused picked up a kassi, and used its blunt side and gave a single blow to the deceased.

In the case of Ram Singh & Ors. v. The State of Haryana (supra), one of the accused-Shri Didar Singh was acquitted by the Hon''ble Supreme Court on the finding that he gave one blow with a "Gandasa" to Shri Bachan Singh whereas no injury possible by a sharp edged weapon was found on the person of the deceased. It was held by the Hon''ble Court that accused-Shri Didar Singh appears to be falsely implicated.

In the case of State of Rajasthan v. Durga & Anr. (supra), Division Bench of this High Court, in absence of opinion that injuries were sufficient in the ordinary course of nature to cause death converted the conviction of the accused to for offence under Section 326 IPC from offence under Section 307 IPC.

In the case of Surja v. State of Rajasthan (supra), it has been held that if similarly situated accused has been ordered to be released on bail, other accused is also entitled to be released even if on merit he is not entitled to be released.

In the case of Dharamveer v. State of Rajasthan (supra), accused-appellant was ordered to be released on bail by the Hon''ble Supreme Court on the ground that High Court has granted bail to co-accused-Shri Dharampal and appellant before the Supreme Court is not in a worst position in comparison to the co-accused to him bail was granted by High Court.

In the case of Yunis & Anr. v. State of U.P. (supra), learned Single Bench of the Allahabad High Court has held that the law of parity is a desirable rule. In matter of release of bail to the co-accused may be applied where the case of the co-accused is identically similar, but cannot be applied for rejecting the bail application of co-accused. A co-accused cannot be denied bail merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to another co-accused was passed, the latter co-accused applying for bail was not heard.

A Single Bench of Hon''ble Allahabad High Court in the case of Mumtaj v. State of U.P. & Anr. reported in , 2000 Cr.L.J. 4497 has held that the parity is not a compelling ground to grant bail. In this case Hon''ble Single Bench refused to grant bail to accused-Shri Mumtaj merely on the ground that benefit of bail has been granted to a similarly situated co-accused.

A Division Bench of Hon''ble Allahabad High Court in the case of Chander alias Chandra v. State of U.P. reported in , 1998 Cr.L.J. 2374, has held that if the order granting bail to an accused is not supported by reasons, the same cannot form the basis of granting bail to an accused on the ground of parity. It was further held that a Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail.

In the case of Nanha v. State of U.P. reported in , 1993 Cr.L.J. 938, another Division Bench of Hon''ble Allahabad High Court has held that the parity cannot be sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail. Even then the court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. Thus, the case of an accused has to be examined individually. Simply because the co-accused has been granted bail cannot be the sole criteria for granting bail to the main accused. Even at the stage of second or third bail the Court has to examine whether on facts, the case of the applicant before the Court is distinguishable from other released co-accused and the role played by the applicant is such which may disentitle him to bail. It was also held that the principle of grant of bail on parity cannot be allowed to be carried to an absurd or illogical conclusion so as to put a judge in a tight and straight jacket to grant bail automatically. There may be case which may require an exception; where a judge may not simply take a different view from the judge who granted bail earlier to a co-accused but where the conscience of the judge revolts in granting bail. In such a situation the judge may choose to depart from the rule recording his reasons. However, such cases would be very few.

In the case of Sita Ram v. State of Rajasthan reported in 1993 (1) RLR 335 (Rajasthan High Court), it was held by the learned Division Bench that as far as possible parity must be maintained if the cases are identical or the matter arises out of the same facts as different judgments in the same case or identical cases lead to a situation which is known as "glorious uncertainty" as the phrase used by their Lordship of the Supreme Court. We may not be mistaken as given remarks for any individual learned brother Judge but we intend to make an observation with all respects that as far as possible if one Bench has passed an order, a contrary order should not be passed by another learned Judge and in case be chooses to differ a reference in that respect may be made to larger Bench. Inconsistent decisions or different views in the matter of admissions or otherwise lead to several misgivings to the litigating public and the lawyers. Predictability and certainty of decisions are matters of eminent public importance.

In the case of Kishan Singh Sarkar v. Rajesh Ranjan alias Pappu Yadav reported in 2005 AIR SCW 536, it has been observed by the Hon''ble Apex Court that the judicial principle requires that the uniformity and parity should be normally observed and the earlier decisions of the Co-ordinate Benches or the larger Benches must be followed, otherwise there would be uncertainty in justice delivery system and forum hunting, which would not be in the interest of the society at large and the institution itself.

The well settled legal position appears to be that parity cannot be the sole ground for grant of bail. It is one of the grounds for consideration of the question of bail. There is no absolute hidebound rule that bail must necessarily be granted to the co-accused, where another co-accused has been granted bail. Even at the stage of subsequent bail application when the bail application of the co-accused whose bail had been earlier rejected is allowed and co-accused is released on bail, even then also the Court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the applicant on bail. If on careful scrutiny in a given case, it transpires that the case of the applicant before the Court is identically similar to the accused on facts and circumstances, who has been bailed out then the desirability of consistency will require that such an accused should also be released on bail. A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed co-accused contains no cogent reasons or if the same has been passed in flagrant violation of well settled principle of law and ignores to take into consideration the relevant factors essential for granting bail. Such an order can never form the basis for a claim of parity. It will be open to the Judge to reject the bail application of the applicant before him as no Judge is obliged to pass orders against his conscience merely to maintain consistency. The grant of bail is not a mechanical act. Merely because some of the co-accused, whom similar role has been ascribed, has been released on bail earlier and State has not moved the higher Court against the order in question for cancellation, the power of the Court cannot be fettered to act against conscience.

It is also well settled legal position that a decision rendered overlooking or in ignorance or without taking into consideration a statutory provision shall be treated as per incuriam and can not be regarded as a binding precedent.

In the present case, the case of the petitioner is clearly distinguishable from the case of co-accused-Shri Rajesh @ Munna. As per the statement of injured-Shri Hemraj the petitioner was involved not only in the occurrence allegedly taken place on a day prior to the present incident but also he came to the house of the injured having a gun and a Farsa in his hand. Although, the gun was not used by him but he inflicted an injury to the head of Shri Hemraj with Farsa. Although, the injury No. 1 opined to be dangerous to life has not specifically been attributed to the petitioner but at this stage of the proceedings it is clear that the petitioner also inflicted injury on the head by Farsa. It is well settled that for an offence to be made out under Section 307 IPC the nature of injury is not always relevant and intention or knowledge on the part of the accused is to be seen. There is no further requirement to opine the injury to be sufficient in the ordinary course of nature to cause death if the same has been opined to be dangerous to life by the doctor. During the course of trial when the doctor is examined as a witness clarification may be sought by either of the parties whether the injury was sufficient to cause death in the ordinary course of nature.

I am further of the view that principle of parity cannot be applied in a case in which an order has been passed in favour of a similarly situated co-accused if the same has been passed overlooking the relevant provision of law.

In view of the above, I do not find any substantial change in the facts and circumstances of the case so as to grant benefit of bail to the petitioner at this stage of the proceedings.

Consequently, the second application for grant of bail under Section 439 Cr.P.C. is, hereby, dismissed.