Vikas vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is an accused of offence under Sections 302, 147, 148, 149, 352, 451 and 323 of the Indian Penal Code, in case FIR No. 45 of 2021 dated

14.8.2021, registered at Police Station, Kasauli, District Solan, H.P. The petitioner is in custody since 15.8.2021.

Petitioner has approached this Court by filing petition under Section 439 Cr.P.C. for grant of bail in above noted case on the grounds that from the

entirety of evidence collected by the investigating agency, case under Section 302 is not made out against the petitioner. Petitioner is stated to be a

disabled person of short stature with very less power in his right hand. It has been stated that co-accused namely Champa, Saroj, Sonu and Sameer

have already been released on bail. Petitioner is stated to be innocent and not involved in the present case in any manner. Implication of the petitioner

has been alleged to be false. It is further averred that petitioner has roots in the society and there is no likelihood of his fleeing from the course of

justice. Petitioner has under taken to abide by all the conditions, as may be imposed against him. Petitioner has further undertaken not to tamper with

the prosecution evidence. As per petitioner, he has no past criminal history.

In response, the respondent-State has filed status report. It is stated that on 14.8.2021 an information was received at Police Station, Kasauli,

District Solan, H.P. that an altercation had taken place between two groups in Village Thana, Post Office Chandi, Tehsil Kasauli, District Solan, H.P.

and some persons had been brought to CHC, Chandi for treatment. In-charge of Police Station, accompanied by other officials reached CHC, Chandi

and found that Padam Dev was dead. After inspection of the body, the police party reached the house of victim where, statement of Kumari Sushila

was recorded under Section 154 Cr.P.C. It was alleged that the complainant was residing at Village Chandi along with her brothers and their family

members. On 14.8.2021, they had arranged a religious ceremony at their home. On the backside of their house, there is a place dedicated to the family

deity and there is a temple of Lord Shiva in their courtyard. Satish Sharma was engaged as priest, who had offered prayer before the family deity at

about 10.00 A.M. and after 10-15 minutes, they had come to the temple of Lord Shiva. At about 1.30 P.M., their neighbor namely Santosh uprooted

the cover placed over the family deity and threw the same in the courtyard. Urvashi, Bhabi of complainant, noticed Santosh throwing the cover and

she along with the complainant and her younger sister Pushpa confronted Santosh regarding reason for his conduct. Santosh blamed that they were

engaged in sorcery and in the meantime, other persons namely Naveen, Vikas, Sanjay, Sameer @ Aadi with Sonu Kumari, Saroj and Champa Devi

also arrived near to the place of family Deity. Urvrshi was given beatings and the complainant and her younger sister were also held by some of the

accused persons and were also given beatings. In the meantime, Padam Dev brother of the complainant arrived and tried to get the complainant and

his other sisters free from the clutches of accused but all five male accused persons started beating Padam Dev. Santosh gave a blow of Danda on

the head of Padam Dev and other four male accused persons including petitioner pushed Padam Dev towards the cliff, as a result of which, he rolled

down from the cliff for about 45 feet. Padam Dev was taken to hospital, where he was declared brought dead by the Doctor.

Case was registered and all the accused were arrested. Petitioner was arrested on 15.8.2021. The rival parties are stated to be engaged in a long

civil litigation with each other. After investigation, sufficient evidence was collected against the petitioner and co-accused. Challan has been presented

in the Court.

I have heard learned counsel for the parties and have also gone through the status report and the police file, made available at the time of hearing.

It has been argued on behalf of the petitioner that from the circumstances, as alleged by the prosecution, no intent to cause death of deceased

Padam Dev can be attributed to the petitioner. It has been argued that the petitioner is a short statured person of about three feet and is disabled to the

extent of about 52% having very less power in his right hand. It has been submitted that the alleged fatal wound found on the body of deceased was

not directly attributable to the petitioner.

Though, the evidence collected by the investigating agency cannot be minutely scanned by the Court at the time of adjudication of bail application,

yet, the material collected during investigation can always be looked into in order to access the gravity and seriousness of the allegations. Following

anti-mortem injuries were found on the person of deceased at the time of post-mortem:-

i) Multiple linear abrasions over left side of scalp in frontal, parietal and occipital aura reddish-brown, ranging from in the coronal plane.

ii) Single laceration of 2x2 cm2 x 1cm red over left occipital region with underlying fracture (depressed) of occipital bone extending upto left parietal

bone measuring 15 cm with underlying intraparenchymal bleed of around 70 ml hematoma.

iii) multiple linear abrasion over right half of upper back vertical measuring 10 cm x 1 cm to 15 cm x 1 cm2, brown in colour.

iv) Single abrasion 2 x 2 cm2 over back of right thigh (middle part), reddish brown.

v) Single laceration irregular 4 cm x 1 cm x 0.5 cm over right lateral malleolus, red.

vi) Single laceration 2 x 1 x 0.5 cm3 on lower surface of right greater toe, brown.

As per opinion of autopsy surgeon, the deceased died due to intra-parenchymal bleed due to fracture skull due to blunt trauma head.

The allegation against the petitioner is that he along with other co-accused gathered on spot by forming an unlawful assembly. Petitioner along with

three other male co-accused pushed the deceased from a cliff, which resulted the fall of deceased into a gorge. It is also alleged against the accused

persons that the push given to deceased Padam Dev by petitioner and three other co-accused was after the deceased was inflicted with a Danda

blow on his head by co-accused Santosh Kumar. Petitioner and other co-accused were fully aware about the topography of the place being local

residents. Being persons of sufficient maturity, petitioner and other co-accused would be having requisite knowledge about the probable consequences

of their action. There is sufficient material against the petitioner on record to prima-facie infer the requisite intent to cause such bodily injuries to

Padam Dev, as was likely to cause his death in all probabilities. All accused persons were related to each other and had arrived at spot without any

provocation.

Petitioner is accused of serious offence. In Prasanta Kumar Sarkar vs Ashish Chatterjee and Another (2010) 14 SCC 496, the Hon’ble

Supreme Court has reiterated the well settled factors to be borne in mind while considering an application for bail as under:

(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.

Nothing has been shown on record on behalf of the petitioner that he along with other co-accused were given sudden provocation of such a grave

nature, which prompted the petitioner and other co-accused to take an extreme step against the deceased.

Petitioner cannot derive any benefit from the fact that some of the co-accused have been released on bail, as they are either females or juveniles

and as such, petitioner cannot seek any parity with them. The role ascribed to the female accused is also different than the role of the petitioner and

other male accused.

Petitioner, if released on bail in the present case, shall not serve the interest of justice, as it will send wrong signal in the society and may

encourage the law breakers to take law in their hands at will.

In light of the above discussions, the petitioner is not entitled to bail at this stage. The trial is yet to begin and material witnesses are yet to be

examined. The release of petitioner on bail may affect the trial adversely. Consequently, the bail petition is dismissed.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the

matter uninfluenced by any observation made herein above.