Mahinder Kumar @ Vicky vs State Of H.P

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest has come up before this Court under Section 439 CrPC, seeking bail on the grounds that during the trial,

the material witnesses have not supported the case set up by the prosecution.

Earlier, the petitioner had filed a petition under Section 439 CrPC before the concerned Sessions Court. However, vide order dated 12.7.2018, Ld.

Additional Sessions Judge-I, Mandi, HP, dismissed the petition.

The bail petition is silent about criminal history, however, Mr. K.S. Thakur, learned Counsel for the bail petitioner states on instructions that the

petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner, which led to the registration of the FIR, mentioned above, are that on 16.1.2018, at 6.00 a.m., when

complainant Khub Ram was on morning stroll, then nearby his house, he noticed one person lying on the road side. Blood was oozing out of his head

because the brain had broken, as such, the brain material has also come out. After that he informed the local Pradhan, who in turn, informed the

police, which has led in recording of his statement, under Section 154 Cr.P.C. The spot revealed that skull was punctured to such an extent that the

blood had oozed out upto the distance of fifteen feet. The said blood was head clotted. The portion of the skull was also spread upto 3-4 feet. The

investigation further revealed that there is possibility of the person was crushed under the tyre of the vehicle. Initially, the police found that the death

was due to rash and negligent driving and registered the FIR under Section 304-A IPC. After that the police collected the evidence from the spot and

took the dead body for postmortem examination to Zonal Hospital, Mandi. The investigation further led that the deceased might be son of one Lala

Ram. After that he was brought to the mortuary and prima facie, he identified the dead body to be of his son. Subsequently, the police recorded the

statement of said Lala Ram. He told the investigator that on 15.1.2018, his son had gone in a pick-up NO. HP31A-7872 towards Jahoo. On this Police

started searching the said vehicle and recovered the same from the house of one Amar Singh. The investigation further revealed that Mahinder

Kumar @ Vicky (A-1) was the driver of the said vehicle. However, the police visited his father at his home, where his father handed over the clothes,

which he was wearing on 15/16th January, 2018. The police seized the same for the purpose of scientific evidence. The police came to know that the

deceased was Chaman Lal @ Kala. The investigation further revealed that on 15.1.2018, one Bhim Singh had visited his House and he had

accompanied with him. At that time Mahinder Kumar (A-1) and Raj Kumar (A-2) were also present in the vehicle No. HP31A-7872, in which they

have come to pick up deceased Chaman Lal. The investigation further revealed that it was a preplanned murder, as a result of conspiracy and the

investigator converted the offence from Section 304-A to Section 302 read with 120-B IPC. Subsequently, the police arrested Mahinder Kumar (A-1)

, Raj Kumar (A-2) and Bhim Singh @ Bhimu (A-3). The FSL noticed presence of Alcohol in the body parts of deceased, which was to the extent of

147.03 mg%. According to the postmortem examination, the accused died due to gross antimortem head injury. According to the investigation, all the

three accused had engaged in a quarrel with the deceased and after that they had crushed him under the tyre of vehicle No.HP31A-7872.

Learned Counsel for the petitioner contends that the petitioner is a maiden offender and incarceration before the proof of guilt would cause grave

injustice to the petitioner and family. He further argued that PW-3 did not support the case of the prosecution and nor did PW-4 Lala Ram.

On the contrary, learned Additional Advocate General contends that it is a case of circumstantial evidence and criminal conspiracy. Unless the

entire prosecution evidence is complete, the petitioner do not deserve to be enlarged on bail.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. Mr. K.S. Thakur, learned counsel for the petitioner has read the statments of

PW-3 and PW-4 from his brief. However, the documents which the learned Counsel referred were neither filed with the petition, nor its copies

supplied to the Court and the State. Thus, the Court cannot base any finding on a document in the Counsel's brief and not on Court's file.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.