Krishan Kumar vs State Of Himachal Pradesh

Sandeep Sharma, J

By way of present petition filed under S.439 CrPC, prayer has been made on behalf of the bail petitioner namely Krishan Kumar, who is behind the

bars for more than two years, for grant of regular bail in FIR No. 204, dated 15.11.2018, registered at Police Station Baijnath, District Kangra,

Himachal Pradesh under Ss. 302, 324 and 323 IPC.

Status report filed by the respondent-State reveals that on 15.11.2018, complainant Vishal got his statement recorded under S.154 CrPC, alleging

therein that on 14.11.2018, he, alongwith deceased Shubham, after having finished their welding work at the residence of Pradeep Kumar resident of

Chobu, went to Mahakal for purchasing a few things. He alleged that he purchased 2 kg chicken, one bottle of whisky, ½ kg tomatoes, ½ kg onion

and few disposable classes and thereafter came to Balh, where persons namely Shubham, Krishan Kumar and Malkeet were also present.

Subsequently person namely Vinod Rana, Pradeep JE and Sanjeev also came to the house of Malkeet alias Nikku. Complainant alleged that after

some time, person namely Pradeep, Vinod Rana and JE went away, whereas, he alongwith Sanjeev, deceased Shubham, stayed in kitchen for having

drinks. Krishan Kumar and Malkeet alias Nikku, stayed in other room. Complainant alleged that at 7 pm, Malkeet Singh alias Nikku, came to the

kitchen for preparing food. After 10 minutes, Krishan Kumar also reached there. They both took two pegs each of whisky alongwith them.

Complainant alleged that after some time, some altercation took place inter se complainant and deceased Shubham and allegedly Krishan Kumar

made an attempt to attack Shubham with knife, however, he and Malkeet separated them and in this process, he suffered injury on his hand.

Complainant alleged that after some time, Krishan Kumar again started quarrel with Shubham and during their fight, Krishan Kumar gave a blow of

knife in the abdomen of Shubham, as a consequence of which, he fell down. Complainant alleged that Krishan Kumar also gave beatings to him. He

also gave blow of Danda/stick on the head of Krishan Kumar. Complainant alleged that he with the help of Gopal, brought deceased Shubham to

hospital but he was declared brought dead. In the aforesaid background, FIR, detailed hereinabove, came to be lodged against bail petitioner under Ss.

302, 324 and 323 IPC on 15.11.2018 and since then, he is behind bars. Challan stands filed in the competent Court of law. Till date, more than 13

witnesses out of total 25 stand examined.

Since all the material prosecution witnesses including complainant have not supported the case of prosecution, petitioner has approached this Court

in the instant proceedings for grant of bail in the changed circumstances. Since the bail petitioner had annexed copies of statements made by material

prosecution witnesses alongwith the petition at hand, this Court, on 14.12.2020, while directing learned Additional Advocate General to ascertain the

status of the trial, also directed him to ascertain the correctness and genuineness of the statements placed on record. Learned Additional Advocate

General informed this court that in all 13 prosecution witnesses remain to be examined but out of them two are material prosecution witnesses since

they are witness of recovery. For recording statement of aforesaid witnesses, matter was listed before learned trial Court on 16.9.2020 and as of

today, more than 13 witnesses including material prosecution witnesses stand examined.

Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to pendency of Challan in the competent

Court of law, contends that copies of statements of prosecution witnesses placed on record are genuine and correct but since the complainant PW-1

has categorically stated that the bail petitioner had inflicted injury in the abdomen of the deceased Shubham, using knife, it cannot be said that none of

the prosecution witnesses has supported the prosecution case. Mr. Bhatnagar, learned Additional Advocate General, while making this Court peruse

the statement of PW-1 Vishal, contends that it stands duly established on record that on the date of alleged incident, bail petitioner, under the influence

of liquor, attacked deceased Shubham on two occasions and subsequently stabbed him with kitchen knife. Lastly Mr. Bhatnagar, contends that since

the statements of 12 witnesses are yet to be recorded, it would be too premature to conclude innocence of the bail petitioner. Mr. Bhatnagar, learned

Additional Advocate General contends that since the trial is likely to be concluded shortly, this Court instead of considering prayer for grant of bail

made on behalf of bail petitioner, may direct the learned trial Court to conclude trial expeditiously.

Having heard learned counsel for the parties and perused the material available on record, this Court finds that the precise case of the prosecution

against bail petitioner is that on the date of alleged incident i.e. 14.11.2018, bail petitioner picked up quarrel with the deceased Shubham and then

attacked him with kitchen knife, as a consequence of which, he died. Prosecution, with a view to support its case, examined complainant Vishal as

PW-1. If the statement of PW-1 is read in its entirety, submission made by learned Additional Advocate General that the complainant PW-1 has

supported the case of prosecution, deserves outright rejection. If the statement made by aforesaid witness in examination-in-chief is perused in its

entirety, it can be safely inferred that on two occasions, fight took place inter se bail petitioner and the deceased Shubham. On the first occasion,

persons namely Malkeet and Vishal (PW-1) separated the bail petitioner and the deceased Shubham. Subsequently, bail petitioner again picked up a

fight with him and made an attempt to cause injury to deceased with the help of kitchen knife but, before he could do so, PW-1 Vishal inflicted blow of

danda on his head with a view to protect himself. Otherwise also, if statement of aforesaid witness made in examination-in-chief is perused, he

nowhere stated that bail petitioner stabbed deceased Shubham, rather, he stated that Sanjeev pushed him out and asked not to fight. In the meantime,

Shubham sustained knife injury in his chest and fell in the courtyard. There is nothing in his examination-in-chief suggestive of the fact that bail

petitioner Krishan Kumar stabbed Shubham in his presence, or he saw Krishan Kumar stabbing deceased Shubham. In his cross-examination,

conducted by learned counsel for the accused, this witness categorically admitted that he did not witness accused Krishan Kumar attacking Shubham

with the knife. Similarly, this Court, after having perused statements of PW-2 Malkiat, PW-3 Vinod Kumar, PW-4 Pradeep Kumar and PW-7 Sanjeev

Kumar, who were allegedly present at the time of alleged incident, does not find force in the submission of learned Additional Advocate General that

all the prosecution witnesses have supported the prosecution case, rather, statements made by aforesaid witnesses, if read in their entirety, suggest

that none of them saw the bail petitioner stabbing Shubham with kitchen knife.

Having carefully perused the statements of aforesaid material prosecution witnesses coupled with the fact that bail petitioner is behind bar for more

than two years and the fact that there is every likelihood of further delay in conclusion of trial on account of Covid-19 pandemic, it cannot be said that

in the event of bail petitioner being enlarged on bail, he may flee from justice or influence remaining prosecution witnesses, who are otherwise official

witnesses. Bail petitioner is behind bars for more than two years and there is every likelihood that conclusion of trial may take some more time,

because though the learned Courts below have now started recording evidence but in limited numbers, as such, there is every possibility that some

considerable time would be consumed by learned trial Court in recording statements of remaining prosecution witnesses, as such, there appears to be

no justification to let the bail petitioner incarcerate in jail for an indefinite period during trial, especially having perused statements of material

prosecution witnesses, who have not supported the prosecution case at all.

Hon'ble Apex Court having taken note of the possibility of delay in conclusion of trial on account of Covid-19 pandemic, has also ordered release of

person accused of possessing commercial quantity of charas, in Amit in Cr. Appeal No. 668 of 2020, titled Amit Singh Moni vs. State of Himachal

Pradesh, observing therein as under:

“... it is accepted that seven witnesses have already been examined in the trial and seven more witnesses are yet to be examined. The last witness

was examined in February, 2020 whereafter there is no further progress in the trial because of the COVID-19 pandemic situation. It is also accepted

that the appellant was taken in custody on 23.02.2018 and, as such, he has completed more than 2 years 7 months of actual custody.

Considering the facts and circumstances on record, in our view, the appellant is entitled to the benefit under Section 439 of the Code. We order

accordingly.â€​

Needless to say that speedy trial is legal right of the accused and one cannot be made to suffer indefinitely for delay in trial and as such, this Court

sees no reason to keep the bail petitioner behind the bars for indefinite period during trial. Delay in trial has been held to be in violation of the right

guaranteed under Art. 21 of Constitution of India. Reliance is placed on judgment passed by the Hon’ble Apex Court in case titledU marmia Alias

Mamumia v. State of Gujarat, (2017) 2 SCC 731, relevant para whereof has been reproduced herein below:-

“11. This Court has consistently recognised the right of the accused for a speedy trial. Delay in criminal trial has been held to be in violation of the

right guaranteed to an accused under Article 21 of the Constitution of India. (See: Supreme Court Legal Aid Committee v. Union of India, (1994) 6

SCC 731; Shaheen Welfare Assn. v. Union of India, (1996) 2 SCC 616) Accused, even in cases under TADA, have been released on bail on the

ground that they have been in jail for a long period of time and there was no likelihood of the completion of the trial at the earliest. (See: Paramjit Singh

v. State (NCT of Delhi), (1999) 9 SCC 252 and Babba v. State of Maharashtra, (2005) 11 SCC 569).â€​

Though, aforesaid aspects of the matter are to be considered by learned trial Court in the totality of evidence but for the reasons stated supra, this

Court sees no reason to curtail the freedom of the bail petitioner for an indefinite period during trial. Apprehension expressed by learned Additional

Advocate General, that in the event of being enlarged on bail, bail petitioner may flee from justice or indulge in such offences again, can be best met

by putting the bail petitioner to stringent conditions.

Recently, the Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has

held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has further held by the

Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty. The Hon'ble Apex Court has held as under:

“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent

until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific

offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of

our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever

expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that

more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial

discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally

there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person

perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an

accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed.

Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was

not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding

due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also

necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such

offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even

Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to

incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973.

To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused

person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor

that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social

and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.â€​

By now it is well settled that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the

court while exercising its discretion. It has been repeatedly held by the Hon’ble Apex Court that object of bail is to secure the appearance of the

accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. The Hon’ble Apex Court in Sanjay

Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; has been held as under:-

“The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive

nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial

when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to

be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to

time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases,

“necessity†is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any

person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his

liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the

question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial

punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been

convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.â€​

Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the

question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of

bail and not jail. Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment,

which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held as under:

“This Court in Sanjay Chandra vs. Central Bureau of Investigation (2012) 1 SCC 40 a,lso involving an economic offence of formidable magnitude,

while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure

that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins

after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither

punitive nor preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be

improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an

unconvicted person for the purpose of giving him a taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an

accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care and caution by balancing the valuable

right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the

relevant considerations while examining the application of bail but it was not only the test or the factor and that grant or denial of such privilege, is

regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under-trial prisoners for an indefinite

period would amount to violation of Article 21 of the Constitution was highlighted.â€​

The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down the following principles to be

kept in mind, while deciding petition for bail:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.

In view of above, bail petitioner has carved out a case for himself. Consequently, present petition is allowed. Petitioner is ordered to be enlarged

on bail, subject to furnishing fresh bail bonds in the sum of Rs.1,00,000/- with two local sureties in the like amount, to the satisfaction of the learned

trial Court, besides the following conditions:

(a) He shall make himself available for the purpose of interrogation, if so required and 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;

(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) He shall not make any inducement, threat or promises 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

(d) He shall not leave the territory of India without the prior permission of the Court.

(e) He shall surrender passport, if any, held by him.

It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to

move this Court for cancellation of the bail.

Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of

this petition alone.

The petition stands accordingly disposed of.

Copy dasti.