Dismissed

Karan Khushalani v. State Of Chhattisgarh

Chhattisgarh HC27 Sept 2016MCRC/5560/2016

Case brief

AI extract

What is this about?

The High Court of Chhattisgarh, Bilaspur, dismissed a bail application under Section 439 CrPC. The accused, charged under Section 304 Part-II IPC for the death of a companion allegedly dragged down stairs while intoxicated, argued for an accident. The court held that the filing of the charge sheet under 304 Part-II without recording an accused memorandum under Section 105 Evidence Act did not esta

What did the court decide?

The bail application was dismissed.

Karan Khushalani Vs State Of Chhattisgarh — Murder and Culpable Homicide | Chhattisgarh HC (2016)

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NAFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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MCRC No. 5560 of 2016

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Judgment reserved on : 22.09.2016

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Judgment delivered on : 27.09.2016

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Karan Khushalani, S/o. Shri Pratap Rai Khushalani, Aged about 27 years, R/o. Pratap Bhawan Jabrapara, Police Station Sarkanda, Bilaspur, Civil & Revenue District Bilaspur, Chhattisgarh.

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---- Applicant

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Versus

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State Of Chhattisgarh, Through Police Station- Civil Lines, Bilaspur, District Bilaspur, Chhattisgarh

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-------------------------	-------	---- 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 -------------------------------------------------------------------

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Hon'ble Shri Justice Goutam Bhaduri

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C.A.V. Judgment

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27.09.2016

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This is the first bail application filed under Section 439 of the Code of Criminal Procedure for grant of regular bail to the applicant who has been arrested in connection with Crime No. 448 of 2016 registered at Police Station- Civil Lines, Bilaspur, District Bilaspur (C.G.) for the offence punishable under Section 304 Part-II, 201 r/w Section 34 of the Indian Penal Code.

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As per the prosecution case, the incident happened in the intervening night of 21^st & 22^nd July, 2016 at a place named Rama Magneto Mall, Bilaspur. One Gaurang Bobde died who was in association with the present applicant and other co-accused. Gaurang Bobde fell down from second floor while was getting down from stairs along-with the applicant and other co-accused.

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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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Learned senior counsels appearing on behalf of the applicant Mr. Surendra Singh along-with Mr. Manish Dutt would submit that death of Gaurang Bobde was due to accident as after consuming fair amount of Alcohol by the deceased and his friends while they were coming down by the stairs due to non-availability of the lift for the moments Gaurang Bobde has fell down as he could not control his movement due to intoxication. It is further contended that it is nobody's case that there has been any dispute as few of the friends along-with the applicant and other co-accused and the deceased were celebrating a party, few of the friends left the party earlier as usual and the deceased and four accused including the applicant stayed till 2:00 O'clock at the Bar. It is further stated that according to the case of the prosecution nobody were over drunk or not in position to walk and normally since lift operation of customer had stopped as such they decided to use the service lift to get down. It

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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 Liftman, 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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It is further contended by the learned senior counsel that while they were getting down by stairs, the accident happened which would be clear from the CCTV footage. It is stated that Panchnama prepared on the basis of the CCTV footage is completely wrong. It is further stated that according to the CCTV footage, it will show that at 2:44.22 initially Kinshuk Agrawal, Karan Jaiswal, Karan Khushlani and Ankit Malhotra came out from the Bar wherein deceased was not present. Subsequently, the deceased joined them at 2:46.38. Thereafter, on two occasion they went to the lift and they subsequently decided to go down by stairs as lift was not available. It is further stated that such decision of the deceased to go down by stairs was a sole act not interdependent. It is further contended that till first floor landing of the floor was successfully made and when the second Camera takes over in the turning, the deceased was shown to be falling and the interpretation made in Panchnama is

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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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Learned senior counsel Mr. Manish Dutt further supplemented the argument and would submit that Karan Jaiswal and other two accused were in front and it takes 24 steps to come down to first floor and the CCTV footage would show that no push was made and would rather show that due to imbalance the deceased fell down as would be evident as per the opinion of the expert dated 06.08.2016 who evaluated the scene of crime. He further referred to the statement of K. Mohan Rao and would submit that two accused had went to the Hospital and made payment for OPD, therefore, it will lead to show the intention of applicant and it was an accident. It is further stated that no further investigation is necessary, therefore, the applicant may be released on bail.

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Learned State counsel narrating the story would submit that the deceased and the persons in the custody were the student of DPS

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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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Learned counsel appearing for the objector vehemently attacked the conduct by the police. It is submitted that according to the police, the deceased was with the applicants till the death took place. Therefore, it is only the applicant who knew what happened. It is further stated that the merg would show that the deceased was shown as unidentified person and if the applicant had brought the deceased to the Hospital then why the identity of deceased was concealed. He further submits that though the applicants have stated that some OPD payment were made by the applicants but facts would show that the false evidence was collected to save the applicant as OPD in State Hospital never kept open at 3 A.M. in such late hours of the night. The objector further disowned the CCTV footage and would submit that the incident was at 1:30 A.M., and there is difference of time of 2 hours therefore 2 hours time was provided by the prosecution to the applicants to make up the evidence. Further, it is stated that the injury behind the neck also was found and shoe and socks were also shown to be taken out and how such could happen if a person falls down. He further submits that according to the statement of Govind Pal, all the accused fled away from the scene and the statement of P.S. Bhagat who went to the scene of crime and gave a report on 06.08.2016 would indicate that it was at the instance of the

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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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Learned senior counsel for the applicant in reply would submit that the CCTV footage is disputed only on the basis of conjectures. He submits that when the CCTV footage shows that the deceased fell down from the stairs, it is not a case of the prosecution that someone else also fell down on that night. Learned counsel for the applicant further submits that the applicant and other co-accused have explained the fact that they were present in the scene and have not denied, therefore, the burden under Section 106 is already made good.

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Heard learned counsel appearing for the parties, perused the case diary and the documents placed on record.

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The State has placed on record the copy of the charge sheet for appreciation and one CCTV footage CD.

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According to the case of State, the FIR would show that the applicant and other co-accused ignored the request of the lift-man Pushpendra Singh and started walking to go down by stairs and Ankit Malhotra started dragging Gaurang to come down by stairs

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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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“iqu% bu yksxksa ds }kjk fyQVesu iq"isUnz flag ds fyQ~V ls pyus ds vuqjks/k dks utjvankt dj fn;k x;k vkSj vafdr eygks=k }kjk xkSjkax dks tcju [khprs gq,] uhps mrkjus yxk rFkk eSXusVks ekWy izFke ry njokts ds lkeus lhf<+;ksa

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dh jSfyax ls fxjk fn;k ,oa fxjrs gq, ns[krk jgk A”

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According to the FIR, the relevant part of execution of offence comes within the word “lkeus lhf<+;ksa dh jSfyax ls fxjk fn;k ,oa fxjrs gq, ns[krk jgk”

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According to the CCTV video footage and Panchnama, the charge sheet contains the following part of the Panchnama and CCTV footage :

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“Mhohvkj esa fjdkMZ le; jkf= 02%50%48 cts esa izFke ry ds njoktk ds lkeus ySafMax lh<+h esa lcls vkxs rhu yM+ds dze'k% fdU'kqd vxzoky] dju [kq'kykuh] dju tk;loky py jgs gSA muds ihNs vafdr eYgks=k] e`rd xkSjkax ckscM+s dks [khaprs gq;s fn[kkbZ ns jgk gSA [khaprku ls vafdr eYgks=k } kjk xkSjkax ckscM+s dks lh<+h dh jSfyax ls fxjk fn;k tkuk fn[kkbZ ns jgk gSA xkSjkax ckscM+s dks lh<+h ls uhps fxjus ij mlds pkjks lkFkh;ks us eqM+dj mls ns[kk] ijarq fdlh us Hkh cpkus dk iz;kl ugh fd;k A”

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Therefore, according to the prosecution, all of the accused were present at the time of incident and one of the accused was dragging the deceased in the stairs and the prosecution stated that the deceased was “ fxjk fn;k” . The entire charge sheet would show that no memorandum is recorded of the accused to discover any facts, if any, was existing. The prosecution for the reasons best known to them has not taken any memorandum to discover any fact. According to the statement of Pushpendra Singh Thakur, the

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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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According to the FIR and CCTV footage, the State has projected that it is a case of murder. The case of the prosecution is xkSjkax ckscM+s fxjk fn;k x;k . However, charge sheet is filed under Section 304 Part-II of IPC thereby showing it that the case would fall under exception to Section 300 of IPC. The presence of four accused persons at the time of incident is not disputed. As per Section 105 of the Evidence Act, burden of proving that the case of the accused comes within exception is on the accused and not on prosecution.

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Section 105 of the Evidence Act reads as under :

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“ 105. Burden of proving that case of accused comes within exceptions .- When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code, (45 of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.”

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Further reading of Section 300 of IPC, it would show that all the exceptions are predominantly based on intention. The filing of the charge sheet under Section 304 Part-II shows that the said burden

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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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In the instant case, admittedly no memorandum of the accused have been recorded to discover any fact in furtherance of the examination and though the CCTV footage and FIR speaks of murder. Therefore, it cannot be decided at this stage that whether it was a culpable homicide not amounting to murder or not. The police virtually has taken over the jurisdiction of the Court to come to a finding that the case falls under Section 304 Part-II when such passage is blocked by implication of Section 105 of the Evidence Act.

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In the facts of this case, the allegations of the objector with respect to the manner of investigation done by the police cannot be shelved. It is for the trial Court to decide the fact as what offence has been committed by evaluating the entire evidence. Mere filing of the case under Section 304 Part-II by the prosecution will not make it insulate and turn the Court to a card board character. In view of this, in the existing facts, the questions looms large about filing of the charge sheet under certain Section and 304 Part-II which contradicts the FIR and CCTV Footage Panchnama of the prosecution itself.

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In view of the foregoing observation, I am not inclined to allow this bail application and it is hereby dismissed.

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Sd/- (Goutam Bhaduri) Judge

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Ashok

Karan Khushalani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

Karan Khushalani v. State Of Chhattisgarh

Case brief

What is this about?

What did the court decide?

What the court decided

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Statutes considered

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