This judgment dismisses a bail application filed under Section 439 CrPC for an accused arrested in a case alleging culpable homicide not amounting to murder. The court noted contradictions between the FIR/CCTV and the Charge Sheet considering the application.
Bail application dismissed. Application for enlargement of the applicant rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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NAFR
HIGH COURT OF CHHATTISGARH, BILASPUR
MCRC No. 5479 of 2016
Judgment reserved on : 22.09.2016
Judgment delivered on : 27.09.2016
Karan Jaiswal, S/o. Shri Gopal Krishna Jaiswal, Aged About 24 Years, R/o. Opposite Shivam Motors, Tifra, Police Station Sirgitti, Bilaspur, Civil & Revenue District Bilaspur, Chhattisgarh.
---- Applicant
Versus
State Of Chhattisgarh, Through Police Station- Civil Lines, Bilaspur, District Bilaspur, Chhattisgarh
| ------------------------- | ------- | ---- Respondent ------------------------------------------------------------------- |
|---|---|---|
| For Applicant | : | Mr. Surendra Singh, Senior Advocate, Mr. Manish Dutt, Senior Advocate, Mr. Sunil Otwani, Mr. Manoj Paranjpe, Mr. Rupesh Shrivastava & Mr. Himanshu Sinha, Advocates |
| For Respondent | : | Mr. Ashish Shukla, Govt. Advocate |
| For Objector ------------------------- |
: ------- |
Mr. Arvind Singh, Advocate ------------------------------------------------------------------- |
Hon'ble Shri Justice Goutam Bhaduri
C.A.V. Judgment
27.09.2016
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According to the FIR, few of the friends of the applicant along-with the deceased Gaurang and other friends namely Kabir Arora, Aditya Arora, Vishal Agrawal, Arjun Sonchhatra, Gaurav Agrawal, Ankit Malhotra, Karan Jaiswal, Kinshuk Agrawal, Karan Khushlani were celebrating a party at TDS Bar at Mall. Few of them left the party after some time while the deceased and other applicants continued the sitting. The applicant and the other co-accused including the deceased consumed alcohol during the party. Initially Kabir Arora, Aditya Arora, Vishal Agrawal, Arjun Sonchhatra, Gaurav Agrawal and Ankit Malhotra left the Bar, thereafter, Kinshuk Agrawal also came out of the Bar and at last Karan Khushlani, Karan Jaiswal and Gaurang Bobde, the deceased, came out of the Bar. They were going towards the service lift to get down from second floor and on their way, they met Ankit Malhotra and Kinshuk Agrawal who forgot the key of their Car. Thereafter, all the four accused namely Karan Jaiswal, Kinshuk Agrawal, Ankit Malhotra, Karan Khushlani and the deceased Gaurang Bobde came back to Bar and again went towards the service lift wherein the lift-man Pushpendra Singh was on his duty. When they reached near the lobby of the lift, the lift went down and all the four accused who appeared to be normal along-with the deceased who was deaddrunk knowing full well the condition of Gaurang Bobde who was in intoxicated condition went to get down by stairs. The said act was done despite knowing the height of the railing of the stairs are short and they have to go to basement and getting down from the stairs may be dangerous and if they fall, there may be chances of death, without waiting for the lift and ignoring the request of the lift-man to use the lift started to get down by stairs. The deceased Gaurang Bobde also followed the applicant. At that time the lift-man again requested the applicant and other co-accused to use the lift, but
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they refused to go by it and Ankit Malhotra was dragging the deceased Gaurang to get down by stairs and dragged him from first floor to the first landing. During such coarse Gaurang made to fall from stairs to the basement 2. After his fall the applicant and others left the deceased to die his own death without helping him to get the first aid and showed nothing has happened. Further on being asked, applicant refused to preside their ear, consequently the deceased was taken by few of the employees of the Mall and of TDS Bar to the District Hospital wherein Gaurang was reported to be dead. The cause of death was shown in the Post Mortem to be the head injury associated with excessive internal haemorrhage due to rupture of liver. On the basis of CCTV footage, the applicant along-with the other accused have been apprehended and charge sheet under Section 304 Part-II read with Section 201 & 34 of IPC has been filed.
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is further stated that the CCTV camera has been seized and the footage will show that firstly the applicant and other co-accused with the deceased had gone to service lift and according to the statement of Pushpendra Singh Thakur, the Lift-man, the applicant and others were not staggering and one of accused, who had earlier left the Bar since forgot his key of Car come back with Ankit Malhotra for the key. So after taking the key again started to come down initially they wanted to come by lift, but the lift has gone to the first floor. Therefore, the initial intention was to get down by lift but as the lift had gone down they decided to come down by stairs. It is further stated the accused waited for the lift for one minute but since the lift was not available as such they decided to go down by walking down by the stairs. It is contended that walking down by stairs cannot be regarded as an offence and it was all individual decision.
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completely wrong. He would further submit that the CCTV footage would show three persons were ahead of the deceased namely Karan Jaiswal, Karan Khushlani and Kinshuk Agrawal and while Gaurang who was behind their stumbled, Ankit who was with him tried to save him but he fell down and the accident took place. It is further stated that the applicant how could imagine and had knowledge that the deceased would stumble. Further, it is contended that it was not within the knowledge of the applicants that the deceased would loose his balance due to over drunk. It is stated that the CCTV footage do not show that they were over drunk. It is further contended that rational behavior has been explained, therefore at the most the case would fall under Section 304 Part-1. It is further submitted charge sheet has already been filed, all the evidence is documentary in nature and have been collected, therefore, the applicant may be enlarged on bail.
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Bilaspur and Kabir Arora when came back from his studies, a party was arranged. Thereafter after joining the party few of the persons left the place and the four of the accused along-with the deceased were left. Subsequently, Ankit Malhotra and Kinshuk Agrawal left the Bar then again came back to get the key of the Car and according to the CCTV footage the deceased fell down due to the act done by the present applicant and other co-accused persons. He therefore opposes the prayer for grant of bail.
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applicant and other co-accused. It is further submitted that the bail application by the applicant was filed on 26.08.2016 when the charge sheet was not filed, however, the reference of CCTV footage has been made at para 6.2 of the bail application and the bail application is signed by the relatives of the applicant which would show that without the availability of CCTV, it was made available to the family members of the applicant which would show the influence of the applicant over the administration. The objector further submits that it is the duty of the applicant under Section 106 of the Evidence Act to explain what happened at relevant time and the prosecution is completely silent on this issue, which could have been explained by the applicant only.
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and during such course, Gaurang was made to fall. The relevant part of the charge sheet is reproduced as under :
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accused along-with the deceased ignoring the request made by him to come down by lift, went towards the stairs and after reaching the first landing, he heard the sound of falling of someone. Thereafter, he saw that one person was lying in the basement and the applicant and other co-accused had not helped him any way. Further statement of Arnold Mashih prima facie would show that when he met with the applicant and other co-accused and enquired about but they completely ignored the incident and denied of falling down of any one.
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of accused has been taken over and have been discharged by the police without the evidence being led before the trial Court by the accused and cross-examination by prosecution. Reading of Section 304-II carefully would purport that it controls the punishment and the intention could only have been gathered after the evidence is placed before the Court. It is for the Court to decide on facts after the evidence is led whether the case would fall under exception of murder of Section 300 of IPC. If the inference is drawn out after the evidence then the charges of murder are dealt and the punishment is dealt by the provisions of Section 304 of IPC.
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Sd/- (Goutam Bhaduri) Judge
Ashok
3 issues framed by the court
Whether bail can be granted to the applicant accused in a case involving alleged culpable homicide or murder arising from a fall down events.
Whether the burden of proving that the case falls within exceptions to murder lies on the accused given the FIR and CCTV footage speak of murder.
Whether the filing of the charge sheet under Section 304 Part-II of IPC is defensible when FIR and CCTV footage strongly implicate murder.
3 provisions across 3 enactments
Karan Jaiswal
State Of Chhattisgarh
Goutam Bhaduri
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
