Shafi Mohhamad vs State of Himachal Pradesh

Sandeep Sharma, J.

Since all these petitions arise out of same FIR, as such, same were taken up together and are being disposed of by this common judgment.

By way of these bail petitions filed under Section 439 CrPC, prayer has been made on behalf of bail petitioners for grant of regular bail in FIR No.

51/18 dated 28.4.2018 under Sections 307, 325, 451, 147, 149 and 323 IPC, registered at Police Station, Tissa, District Chamba, Himachal Pradesh.

Sequel to order dated 11.6.2018, ASI Hem Raj has come present with the record. Mr. Dinesh Thakur, learned Additional Advocate General has

also placed on record status report, prepared on the basis of investigation carried out by the investigating agency. Record perused and returned.

Perusal of status report suggests that on 27.4.2018 complainant Yaseen got his statement recorded under Section 154 CrPC, alleging therein that on

27.4.2018, at about 4 pm, bail petitioners alongwith Kasim Deen and Manjoor entered their house unauthorizedly and gave merciless beatings to him

and his parents, as a consequence of which, he as well as his mother and father suffered grievous injuries. Complainant and his parents were

subsequently rescued by persons residing in the neighbourhood. Police got complainant, Amina and Ali Mohammed medically examined from Medical

Officer, Tissa, who reported injuries allegedly suffered by complainant and other victims to be simple in nature. Medical Officer, Tissa, referred victim

Ali Mohammed for CT Scan to Pt. Jawaharlal Nehru Government Medical College, Chamba and X-ray was got conducted at aforesaid Medical

College but Ali Mohammed was further referred to Civil Hospital Nurpur for CT Scan. It appears that CT scan of Ali Mohammed was got done from

some private hospital on 28.4.2018, wherein it was reported that there is “mild displaced # of nasal bone (lt. side)†as such, injury is grievous.

Report of CT scan further reveals that there was “small subgalead haernating in oeciput region (ltd. side)†and if proper treatment is not taken,

same would be dangerous to life. Police after completing all codal formalities, arrested all the accused on 4.5.2018 and since then they are behind the

bars. Two of the accused namely Kasim Deen and Manjoor have been already enlarged on bail by the learned Additional Sessions Judge, Chamba.

Mr. N.K. Thakur, learned Senior Advocate duly assisted by Mr. Divya Raj Singh, Advocate, while referring to the record, vehemently argued that

no case, if any, is made out under Section 307 IPC, against bail petitioners because there is no material adduced on record suggestive of the fact that

complainant as well as other family members suffered grievous injuries on account of beatings, if any, given by bail petitioners and other accused. Mr.

Thakur, further contended that medical evidence adduced on record completely belies the story of the prosecution because as per story of prosecution,

victim Ali Mohammed was given blow with “Gainti†(pickaxe) on his head but as per report, no injury has been found on the head of the victim,

rather, injury, if any, is on the left side of nose. He further argued that as per report given by Medical Officer, Tissa, who had first opportunity to

examine the victims, all the injuries were found to be simple and victims were not hospitalized for even an hour. Lastly, Mr. Thakur, learned Senior

Advocate contended that at present there is no independent witness, if any, associated by prosecution to prove factum with regard to quarrel, if any,

having taken place between bail petitioners and complainant. Mr. Thakur, learned Senior Advocate further contended that all the bail petitioners are

local residents of area and there is no likelihood of their absconding from investigation or trial, rather, they shall make themselves available for

investigation and trial as and when required and as such, they deserve to be enlarged on bail.

Mr. Dinesh Thakur, learned Additional Advocate General, while refuting aforesaid submissions having been made by the learned counsel

representing the bail petitioners, contended that it is amply clear from the medial evidence adduced on record that victims suffered grievous injuries on

their persons, on account of merciless beatings given by bail petitioners and other accused, as such, they do not deserve to be enlarged on bail. Mr.

Thakur further contended that keeping in view of gravity of offence allegedly committed by the bail petitioners, they do not deserve to be shown any

leniency rather need to be dealt with severely. While inviting attention of this Court to medical evidence adduced on record, Mr. Thakur contended

that it has been specifically opined by medical experts that injury No.1 i.e. displaced nasal bone is grievous in nature and could be dangerous to life of

victim namely Ali Mohammed and as such, bail petitioners have been rightly booked under Section 307 IPC.

I have heard the learned counsel for the parties and gone through the record carefully.

Having carefully perused record /status report, this Court finds that immediately after alleged incident, victims were taken to Medical Officer, Tissa,

who after having examined them, opined all the injuries to be simple in nature. Though, victim namely Ali Mohammed was referred to Medical College

Chamba for CT Scan, but it is not understood why he was further referred to Zonal Hospital Nurpur. There is no mention, if any, in the record that

why CT Scan of Ali Mohammed was not conducted at Medical College, Chamba or at Nurpur. It has come only in the report submitted by private

Doctor/hospital that victim Ali Mohammed suffered grievous injury i.e. mild displaced nasal bone (left side). No doubt, X-ray was got conducted at

Chamba, wherein injury No.3 was termed to be grievous in nature, but this Court, taking note of the fact that medical report adduced on record is not

in consonance with the story put forth by the prosecution that Ali Mohammed was hit on head with pickaxe, finds considerable force in the argument

of Mr. N.K. Thakur, learned Senior Advocate that at this stage, there appears to be no definite/direct evidence, if any, against accused named in the

FIR, suggestive of the fact that they committed offence punishable under Section 307 IPC. Though aforesaid aspect of the matter is to be considered

and decided by the trial court on the basis of evidence adduced on record by investigating agency but this Court, taking note of the fact that bail

petitioners are local residents and they have no criminal background, sees no reason to let them incarcerate in jail, for indefinite period, especially

when their guilt is yet to be proved in accordance with law.

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 guilt has not been 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.â€​

By now it is well settled that gravity alone cannot be 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€​

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, also 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€​

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.

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, all the bail petitions are allowed. Petitioners are ordered to be enlarged on bail subject to furnishing personal bonds in the sum of

Rs.1,00,000/- (Rs. One Lakh) each with one local surety each in the like amount, to the satisfaction of the learned trial Court, besides following

conditions:

(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

(c) They 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) They shall not leave the territory of India without the prior permission of the Court.

(e) They shall surrender passports, if any, held by them.

It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, 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

instant petitions alone. The petitions stand accordingly disposed of.