Rakesh Vs State of Hp

The petitioner has filed the present petition for seeking regular bail. It has been asserted that the petitioner was arrested for the commission of an offence punishable under Section 302 read with Section 34 of IPC vide FIR No. 207 of 2023 dated 01.11.2023 registered at Police Station Bhuntar District Kullu, Himachal Pradesh. The petitioner is innocent and he was falsely implicated. There is no eye witness to the incident. There

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is no direct or medical evidence against the petitioner. The

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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petitioner was not seen in the company of the deceased before the incident. The statement recorded under Section 164 of Cr.P.C. does not show the involvement of the petitioner. The petitioner is a permanent resident of Kullu and there is no likelihood of his absconding. The petitioner is the sole earner in the family. He would abide by all the terms and conditions, which the Court may impose. Hence, the petition.

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The petition is opposed by filing a status report asserting that the police received an information from the Medical Officer that one person was brought dead to the hospital. The deceased’s father made a statement that he was employed as a Conductor in HRTC. He saw the deceased on 31.10.2023 at 6:00 AM with Sunil Negi, Hira Lal, Chet Ram son of Surat Ram and Chet Ram son of Geru Ram. The informant was told by Guddu that the deceased Hari Chand was lying on the roadside. The informant went to the spot and saw that the deceased had suffered a bleeding injury on the head. The informant brought him to the hospital, where the Doctor declared him brought dead. The police registered the FIR and conducted the investigation. The police made inquiries from the persons and found that Chet Ram and Rakesh had murdered the

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deceased. Heera Lal had concealed the evidence to protect the culprit. Chet Ram got recovered the stick that was used to hit the deceased. The petitioner also recovered a grip, which was used by him to inflict injury on the leg of the deceased. As per the report of the post-mortem examination, the cause of the death was gross sub-arachnoid haemorrhage secondary to the blunt trauma sustained to the head region. The medical officer stated that the injuries noticed by him could have been caused by the stick recovered by the police. As per the investigation, Chet Ram had inflicted a stick blow and petitioner Rakesh Kumar had inflicted a grip blow to the deceased due to which, he died on the spot. The police prepared the challan after the completion of the investigation and presented it to the Court. The Court framed the charges. The matter was listed for recording the statements of witnesses on 03.07.2024.

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I have heard Mr. Sunny Modgil, learned counsel for the petitioner and Mr. Lokender Kutlehria, learned Additional Advocate General, for the respondent/State.

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Mr. Sunny Modgil, learned counsel for the petitioner submitted that the petitioner is innocent and he was falsely

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implicated. As per the prosecution, the petitioner had inflicted an injury on the leg of the deceased with a grip and he cannot be held liable for the commission of murder; therefore, he prayed that the present petition be allowed and the petitioner be released on bail.

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Mr Lokender Kutlehria, learned Additional Advocate General for the respondent/State submitted that the petitioner is involved in the commission of a heinous offence and he should not be released on bail.

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I have given considerable thought to the submissions made at the bar and have gone through the records carefully.

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The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under: -

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12. The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

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(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail

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a conviction and the nature of evidence in support of the accusations;

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(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

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(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

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(d) Frivolity of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

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13. We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

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“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to

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consider among other circumstances, the following factors also before granting bail; they are:

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( a ) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

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(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124] .)”

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A similar view was taken in State of Haryana vs

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Dharamraj 2023 SCC Online 1085, wherein it was observed:

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7. A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528 . In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496 , the relevant principles were restated thus:

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‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.’

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The present case has to be decided as per the parameters laid down by the Hon’ble Supreme Court.

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The status report shows that the petitioner had inflicted a blow using a grip, whereas Chet Ram inflicted a blow using a stick on the head of the deceased. Both the accused were acting in concert and therefore, the petitioner would be prima facie liable by Section 34 of IPC even though he had not inflicted a fatal injury; hence, the plea that the petitioner cannot be held liable for the commission of the murder because he had not inflicted the fatal injury is not acceptable.

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A heavy reliance was placed upon the typed statement of Sunil Negi; however, the authenticity of this document is highly suspect because it is not a certified copy of the statement made by Sunil Negi and no reliance can be placed upon the same at this stage.

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Even otherwise, this statement shows that the petitioner Rakesh and Chet Ram had acted together. Chet Ram inflicted the fatal blow and the petitioner gave kicks and fist blows. Hence, this statement also does not rule out the applicability of Section 34 of IPC and no advantage can be derived from the same.

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As per the medical report, the deceased had died due to a head injury, which could have been caused using a stick recovered by the police. Hence, prima facie, the involvement of the petitioner for the commission of an offence punishable under Section 302 read with Section 34 of IPC is established at this stage.

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There is a force in the submission of Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent/State that the nature of the offence is heinous, which is punishable with capital punishment. Therefore, the

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petitioner cannot be released on bail at this stage keeping in view the nature of the crime and the severity of the punishment.

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Consequently, the present petition fails and the same is dismissed.

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The observation made herein before shall remain confined to the disposal of the instant petition and will have no bearing, whatsoever, on the merits of the case.

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( Rakesh Kainthla) Judge

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12^th September, 2024 (saurav pathania )

Rakesh v. State of Hp

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Rakesh v. State of Hp

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