Jaswant alias Rulda vs State of H.P.

Surinder Singh, J.—Petitioner was arrested on 18.7.2009 in FIR No. 112 of 2009 registered on 14.7.2009 in Police Station Baddi under Sections 302, 307, 341, 323 read with Section 34 Indian Penal Code. His bail application was dismissed by the learned Additional Sessions Judge, Solan hence, this application u/s 439 of the Code of Criminal Procedure.

Challan stands presented in the court for the trial of the accused persons wherein charge is yet to be framed.

Report filed. Heard.

Precisely, case of the prosecution is that on 13.7.2009 at about 10 p.m. Nishar son of Gafoor, while returning from Mosque after offering the prayer was laid in his village Bhud by the Petitioner and three other persons hired by him, near the house of his co-villager Balbir.

Some unknown person informed the police telephonically about the incident. This fact was recorded in the Rojnamcha, but neither the name of assailants nor their identification was revealed. Nishar was lying unconscious in the street having grievous injuries. The father of injured with the assistance of other villagers took him to a private Hospital named "Malhotra Hospital" at Baddi. Police reached there and moved an application to the Medical Officer Incharge of the said Hospital to find out whether the Petitioner was in a fit state to make his statement. It was informed that deceased was unconscious thus unfit. Injured was referred to P.G.I., Chandigarh where he arrived at 1.55 a.m. He was admitted in P.G.I. for treatment. Blood was oozing from his ear. There was serious injury on his head. On 16.7.2009 police moved an application for issuance of Medico Legal Certificate of the deceased. As per certificate, deceased was having grievous injuries on his person which were dangerous to his life.

On 17.7.2009 injured Nishar breathed his last. The autopsy of the dead body was conducted. Police also took into possession his postmortem report.

Gafoor, father of the deceased made a statement to the police on 14.7.2009 in P.G.I. Chandigarh involving the Petitioner and three others. He stated that he was attracted by some commotion near the house of Balbir. On reaching there, he saw the Petitioner along with three other persons giving beatings to his son and on seeing him, they fled away.

It is pertinent to note that right from the time, when deceased was taken from the spot to private Hospital, his father was along with him and thereafter he also accompanied him to P.G.I. Chandigarh. During this time, Police had also come in contact with him but no such allegation was made.

The statements of Balbir and his son Shamsher both of them also do not say that it was the Petitioner who was responsible to cause the death by beating. The perusal of their statements shows that they had not witnessed the occurrence. It was the accused who had informed about the fact that some unidentified persons had given beatings to the deceased and he was lying in the street. Balbir in his statement recorded u/s 161 of the Code of Criminal Procedure also stated that he visited the spot and informed the father of the deceased it was only then he had visited the spot. Meaning thereby that even said Gafoor may not have seen the alleged occurrence. Therefore, prima facie, in my opinion, Petitioner has a case for bail as such, the application is allowed and the Petitioner and it is ordered that the Petitioner be released on bail on his furnishing bail bonds in the sum of Rs. 20,000/- with one surety in the like amount to the satisfaction of the learned Chief Judicial Magistrate, Solan and this bail shall be subject to the conditions that the Petitioner:

(a) shall present himself in the court and to the Investigating Officer as and when required to do so in this case.

(b) shall not tamper with the prosecution evidence in any manner.

(c) shall not make any inducement, threat or promise to any person acquainted with the facts and circumstances of this case so as to dissuade him from disclosing such facts to the court or the Police officer.

Needless to say in case he commits any breach of any of the conditions above, the liberty of bail shall be cancelled.

Any observation, made hereinabove is strictly for the disposal of this bail petition and shall not mean any expression on the merits of the case.

Let an authenticated copy of this order be sent to the learned Chief Judicial Magistrate, Solan forthwith for his information and necessary action at his end.

The copy be supplied to the counsel for the Petitioner, if applied urgently, as per rules. The application stands disposed of.