Kapil Dev vs State Of Himachal Pradesh

Vivek Singh Thakur, J

The instant petition, preferred under Section 439 Code of Criminal Procedure (in short ‘Cr.P.C.), has been filed for enlarging the petitioner on bail in case FIR No. 80 of 2020, dated 11.3.2020, registered in Police Station Baddi, District Solan, H.P. under Sections 302, 147, 148, 149 and 504 of Indian Penal Code 1860 (in short ‘IPC’).

Status report stands filed. Record was also made available.

Prosecution case in brief is that on 10.3.2020, at Maanpura on the festival of Holi, victim, alongwith his room partners and some other boys, was celebrating Holi on the roof of their house. At around 1.30 p.m., six to seven boys, including petitioner – Kapil Dev and Neeraj came there, who were tenants in the same vicinity, and started hurling abuses without any reason and when victim and others tried to stop them, they started beating them with kick and fist blows and petitioner-Kapil Dev picked up an iron rod, lying on the roof, and gave blow on the head of victim - Ashish Kumar. Thereafter, victim Ashish Kumar was taken to the hospital wherefrom he was referred to P.G.I. Chandigarh on the same day and Sheshmani Prajapati, Roshan Singh, Aman Gupta and Javed Khan accompanied the victim to PGI Chandigarh.

As per the prosecution case on 10.3.2020 at about 2.20 p.m., an information was received in the Police Station Baddi from the Civil Hospital Nalagarh about bringing the injured for treatment after quarrel. The police party immediately rushed to the hospital and it returned at 10.25 p.m. To this effect reports in the Daily Diary Register were also entered. It is case of the prosecution that victim was referred to PGI Chandigarh and thereafter police visited on the spot but nothing was found there and no one there disclosed about the incident. On 11.3.2020 police again went to Maanpura after 2.00 p.m. where at 3.50 p.m., complainant Aman Gupta made statement under Section 154 Cr.P.C. about the incident, on the basis of which FIR was registered in Police Station Baddi. It is further the case of the prosecution that the victim remained under treatment and ultimately succumbed to the injury on 3.4.2020 whereafter Section 302 was incorporated and Section 323 IPC was omitted from the case.

Post mortem of the deceased was conducted on 4.4.2020 in PGI Chandigarh wherein cause of death has been reported as “Post Traumatic Hydrocephalus as a Complication of Traumatic Brain Injury, which is sufficient to cause death in an ordinary course of nature - Antemortem”.

As per the status report, during his treatment, on 15.3.2020, victim was taken from PGI Chandigarh to Healthsure Multispeciality Hospital Gharauan, Mohali, Punjab where he remained up to 17.3.2020 and thereafter the deceased remained hospitalized in Osmed Health Care Multispeciality Hospital, Zirakpur, from 20.3.2020 to 30.3.2020. Thereafter, he was admitted in Aashirvaad Hospital, Zirakpur on 30.3.2020 and remained there till 3.4.2020 wherefrom he was again referred to PGI Chandigarh. At that time Covid-19 pandemic was at its peak, therefore, accused persons could not be arrested and in the month of August, on 9.8.2020, accused Neeraj, Pradeep, Pawan Kumar, Mithun, Gurmail Singh, Kashmir Singh and petitioner -Kapil Dev were traced and after interrogation were arrested on 10.8.2020. Co-accused namely Pawan Kumar, Mithun, Neeraj and Gurmel Singh have been enlarged on bail by a Co-ordinate Bench of this Court during May, 2021 to August, 2021. Other co-accused namely Pradeep and Kashmir Singh have also been released on bail.

Learned counsel for the petitioner has submitted that there is delay in lodging the FIR. The incident allegedly took place on 10.3.2020 at about 1.30 p.m. but complaint was lodged on 11.3.2020 after 3.50 p.m. Whereas, it is the case of police that on receiving information from the Hospital, police rushed to the hospital but injured was not in a position to make statement and he was referred to PGI Chandigarh and on the spot, no one disclosed about the incident and it was on the next day that complainant Aman Gupta made statement to the Investigating Officer. It has further been submitted that it is case of the prosecution that Sheshmani Prajapati, Roshan Singh, Aman Gupta and Javed Khan were accompanying the injured in the hospital at Nalagarh as well as in PGI Chandigarh and, therefore, eye-witnesses to the incident were very much available in the hospital to make statement with regard to the incident but it was not done so because the incident did not take place as alleged in the prosecution story. It is an after-thought where the petitioner and other co-accused have been named as assailants whereas there was scuffle between persons celebrating Holi and during scuffle fist and kick blows were only used by both parties and even if prosecution case is treated to be true, accused persons did not come armed with weapons, and iron rod allegedly used for hitting victim was lying on the spot and single blow whereof has been given to the deceased by some one and not by petitioner–Kapil Dev but he has been named deliberately in order to justify the incident as reported to the police and accused persons have been named after due deliberations.

It has further been contended that there was no enmity between the parties and it was sudden fight cropped during celebration of Holi and there was no intention to kill anybody and even if entire prosecution is considered to be true then also it is a case under Sections 304 or 325 IPC but not a case under Section 302 IPC.

Referring MLC of the deceased issued by the Medical Officer Civil Hospital, Nalagarh, deceased was brought to the Health Centre at 2.05 p.m. and police docket was received there at 3.30 p.m. and patient was referred to PGI Chandigarh thereafter. Meaning thereby that at the time of arrival of the police, deceased alongwith others was present in Civil Hospital, Nalagarh. At that time Aman Gupta or any other person, claiming to be an eye-witness to the incident, did not disclose either to the Medical Officer or to the police about the manner in which the injury was received by the deceased. It has been further stated that only one injury on the fore-head of the deceased was found and reported by the Medical Officer and a single blow cannot be treated to have been given with intention to kill.

Referring the certificate issued by Aashirvaad Hospital, Zirakpur wherefrom the deceased was again referred to PGI Chandigarh, it has been contended that the deceased was not referred for treatment of his head injury but because of sudden fall of SPO2 Level in his body on 3.4.2020 as he was referred for New Tracheostomy Tube at 9.30 am in the morning which indicates that the victim did not die of injury caused in the incident but probably for Covid-19 disease as is also evident from the statement of Dr. Manju who treated the deceased Ashish Kumar in Aashirvaad Hospital.

Referring to the post mortem report, it has been pointed out that lungs of the deceased were found congested and on cut section patchy areas of consolidation were found present in basal lobe, which indicates that the cause of death was not head injury but infection in lungs.

It is also contended that the deceased was not provided proper treatment and he was shifted from PGI Chandigarh to Healthsure Multispeciality Hospital Gharauan, Mohali on 15.3.2020 where he remained admitted till 17.3.2020 but where the deceased was kept from 17.3.2020 to 20.3.2020 has not surfaced on record which indicates that cause of death is not the injury but negligence in treatment of the deceased for which petitioner-Kapil Dev cannot be blamed.

Learned counsel for the petitioner submitted that as per the prosecution story assailants were tenants in the same vicinity and both parties known to each other and despite that at the time of treatment of the deceased in Civil Hospital Nalagarh nothing was disclosed about the manner in which injury was received by the deceased and the person who inflicted injury which indicates that the petitioner alongwith others have been named after due deliberations.

Learned Additional Advocate General has submitted that the petitioner has given blow to the deceased on his forehead with iron rod and it’s a matter of basic common knowledge of prudent person that such blow may cause death of a person and, therefore, petitioner has rightly been charged with Section 302 IPC and is not entitled for bail. Further, that there is no delay in lodging the F.I.R. On the first day, everyone was busy and worried about the treatment of the deceased and deceased was shifted to PGI Chandigarh from Nalagarh and, therefore, at that time no statement could be recorded by the police but on the next day police went to the spot and complainant Aman Gupta met the Investigating Officer and, therefore, the delay, if any, stands explained by the facts and circumstances and further that complainant was not having any previous enmity to implicate the petitioner and other accused falsely in the commission of offence. Further, that post mortem report clearly indicates that the deceased died because of injury received in the incident.

It has further been submitted by the learned counsel for the petitioner that petitioner was not having any enmity with the deceased and there was no reason for him to hit with iron rod with intention to kill and the injury, if any, caused during scuffle that too by giving single blow cannot be considered to have been inflicted to cause death of the deceased, and had it been so, then more than one blow of rod would have been inflicted on the body of the deceased, whereas, in the present case there was no other injury on the body of the deceased, therefore, petitioner deserves to be enlarged on bail.

It has been submitted that the petitioner is permanent resident of Himachal Pradesh and there is no possibility of his fleeing from justice. Also there is no previous criminal history against him and even facts in the present case does not establish any brutality and criminality on the part of the petitioner and he is ready to abide by all the conditions imposed upon him at the time of enlargement on bail.

Without commenting on merits with respect to the rival contentions of the parties, but taking into consideration the material placed before me including the factors and parameters required to be considered at the time of granting bail as propounded by the Courts including the Supreme Court, I am of the considered opinion that, at this stage, petitioner may be enlarged on bail.

In view of above, petitioner is ordered to be released on bail in case FIR No. 80 of 2020, dated 11.3.2020, registered in Police Station Baddi, District Solan, H.P. under Sections 302, 147, 148, 149 and 504 of Indian Penal Code 1860, on his furnishing personal bond in the sum of `50,000/- with one surety in the like amount, to the satisfaction of trial Court, within two weeks from today, subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly 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 Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that he shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that he shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial;

(viii) He shall not leave India without permission of the Court.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice.

In case the petitioner violate any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.

Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.Instructions/93-IV.7139 dated 18.03.2013.

Observations made in this petition herein before shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application.

The petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

The petition stands disposed of in the aforesaid terms.