Jhon Topo @ Jhohni vs State

Sat Pal, J.

(1) This is a petition for release of the petitioner on bail u/s 439 of the Crl. Procedure Code.

(2) In this case the Fir was registered at the instance of Sanjay Kumar who himself was injured on the date of occurrence. It has been alleged that on 12th April, 1988 at about 9.15 Pm Sanjay Kumar, complainant Along with Vivek Jain @ Bobby (deceased) was coming from Basrurkar Market when three boys, namely, John Topo @ Johney (petitioner), Abhey Sarang and Neol Roopak Kajoor came from the side of Ring Road. It is further alleged that the petitioner gave an exhortation "Yeh Woh Larka Hai jo Aye Din Mujhsey Pangey Leta Hai" and thereafter all the three accused started giving fists and blows to the complainant and deceased Vivek Jain. It is further alleged that the petitioner told the co-accused Abhey Sarang to take out the knife and kill Vivek Jain @ Bobby and thereafter accused Abhey Sarang took out the knife from the dub of his pent and inflicted knife injuries on the abdomen of the deceased Vivek Jain @ Bobby.

(3) Mr. Grover, the learned counsel appearing on behalf of the petitioner submitted that even as per the allegations made in the Fir and as per statement of Public Witness -l Sanjay Kumar it could not be a case of murder and at the most it could be a case u/s 304 Part-II Indian Penal Code in as much as there was no prior conspiracy or pre-meditation and the fight was a sudden one. The learned counsel further submitted that there is no allegation that there was any quarrel prior io the date of incident. He also submitted that only one attempt to inflict injury by knife was made. In support of his submissions, he placed reliance on two Supreme Court judgment in the case of Jawahar Lal and Another Vs. State of Punjab, and in Panchdeo Narain Srivastava Vs. Km. Jyoti Sahay and Another, .

(4) The learned counsel also submitted that the petitioner at the relevant time was below the age of 21 years and even if he is convicted u/s 304 Part-II Indian Penal Code, he will be entitled to be released on probation.

(5) Mr. Bahri, the learned counsel appearing on behalf of the State, however, submitted that Public Witness -1 in his statement before the learned trial Judge has clearly stated that the petitioner had given an exhortation and thereafter all the three accused had given fists and blows and again it was at the call of the petitioner that co-accused Abbey Sarang had inflicted knife injuries and thus, prima facie, the present case was a clear case of murder. He also pointed out that earlier also the bail petition filed by the petitioner was dismissed as withdrawn by this Court on 14th January, 1991.

(6) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the records as well as the judgment cited by the learned counsel for the petitioner. Keeping in view the material placed before me, I am of the view that this is not a fit case to grant bail to the petitioner at this stage. In this connection, I may refer to a recent judgment of the Supreme Court in the case of Hari Om and Others Vs. State of U.P., . In this case it has been held that "in order to bring a case u/s 34 Indian Penal Code, it is not necessary that there must be a prior conspiracy or premeditation. The common intention can be formed in the course of occurrence." Accordingly, I do not find any merit in this petition and the same is dismissed. I may, however, point out that the observations given herein above will not have any bearing on the merits of the case.

(7) The lower court records be returned forthwith.