BAIL APPLN./1140/2024 of GULSHAN SINGH Vs STATE

CORAM:HON'BLE MR. JUSTICE VIKAS MAHAJANO R R%20.05.2024

1.The present petition has been filed under Section 439 CrPC seekingregular bail in connection with FIR No.33/2020 under Section 302 IPC(subsequently Sections 201/34 IPC were added in the charge sheet)registered at Police Station Mansarovar Park.

2.The case of the prosecution is that eye witness Vikky Singh @Pappan stated that on 25.01.2020 accused Gulshan (petitioner herein) hadcome to him at about 04:00 p.m. and snatched away bundle of Gutka andRs.800/- from him. At that time, Gulshan was accompanied with Gursewak@ Bittu, Gurdas and one boy who was Sardar.

3.Thereafter, the witness went to his uncle Rishi Kapoor (deceased).Then the deceased, along with his brother Vishnu Kumar, Pinki and Shivani,reached the railway line, where accused Gulshan was present along withother accused persons. All the accused persons were in inebriated condition.

Petitioner/accused Gulshan was angry and started abusing. He also took outa chhuri (small knife) and threatened to stab the deceased in his abdomen.Thereafter, the persons present there intervened.

4.Later on, at about 09:00 p.m., the witness went to the house ofdeceased Rishi Kapoor and asked him to get his money and bundle backfrom Gulshan. The deceased agreed to go and meet Attar Singh, father of theaccused Gulshan. When the witness, along with deceased Rishi Kapoor andShivani, reached the intersection at Gali No. F-5, Mansarovar Park, Gulshanwas present there near pavement of Mausi’s Dukkan with his friendsGursewak @ Bittu, Gurdas and one Sardar.

5.It is the case of the prosecution that Gulshan advanced towardsdeceased Rishi Kapoor, caught hold of his neck and started hurling abuses atthe deceased. Co-accused Gursewak @ Bittu, Gurdas and the Sardar alsojoined in and started hurling abuses at Rishi Kapoor. Gulshan, thereafter,started beating Rishi with blows which was objected to by the eye-witness,Vikky Singh @Pappan while Shivani, daughter of the deceased, cried tosave her father. Gulshan slapped Vikky Singh @ Pappan and warned himnot to interfere and pushed Shivani away.

6.It is further alleged that accused Gursewak @ Bittu and the Sardarcaught hold of deceased Rishi Kapoor from the back and Gurdas caughthold of deceased’s left hand. In the meanwhile, the accused Gulshan(petitioner herein) took out knife from his waist and stabbed the deceasedon his leg with full force. On account of said injury, the petitioner wasadmitted in the hospital where he succumbed to his injury while he wasbeing treated.

7.The learned counsel for the petitioner submits that the injury in thepresent case is on the non-vital part of the body. He further submits that incase the petitioner really intended to commit murder of the deceased, hewould have given injury on the vital part of the body of the deceased.

8.He submits that the absence of injury on any vital part shows that thepetitioner had not intended to cause the death of deceased or to cause anybodily injury as was likely to cause death. It is also not possible to attributeany knowledge to the petitioner that the injury inflicted on the thigh ofdeceased was likely to cause death, the same being on non-vital part.

9.He submits that as per prosecution version it is the deceased and otherpersons who were on lookout for the petitioner and not the other way round.According to him, the prosecution story shows that the incident happened ina sudden fight without any premeditation in heat of passion upon suddenquarrel without the petitioner acting in cruel manner.

10.It is further the contention of the learned counsel that the petitioner isin custody since 30.01.2020 and the investigation in the matter is complete,therefore, no further recovery is required to be made.

11.He submits that apart from the present case, there is only one othercase against the present petitioner registered vide FIR No.33/2020 underSection 25 of the Arms Act registered at Police Station Special Cell. In thesaid case, the petitioner has already been enlarged on bail. He, therefore,urges the Court that the petitioner may be enlarged on bail in the presentcase as well.

12.Per contra, the learned APP for the State has argued on the lines ofthe Status Report, which has been handed over in the Court and is taken onrecord.

13.He submits that the injury was inflicted with knife with full forceand the knife was recovered at the instance of co-accused. The FSL reportshows that the DNA of the blood stains found on the knife matches the DNAof the deceased. Further, as per doctor’s opinion, the injury was sufficient inthe ordinary course of nature to cause death. The subsequent opinion of thedoctor also shows that injury on the leg of deceased could be possible withoffence weapon recovered at the instance of co-accused.

14.He further submits that out of four public witnesses, only one witnessis under examination while other three public witnesses are yet to beexamined. He, therefore, urges the Court that present petition be dismissed.15.I have heard the learned counsel for the petitioner, as well as, thelearned APP for the State and have perused the record.

16.It is case of the prosecution itself that the injury was inflicted by thepetitioner by knife on the thigh of the deceased, which is undisputedly anon-vital part of the body, therefore, prima-facie there seems to be somesubstance in the contention of the learned counsel for the petitioner that hadthe petitioner really intended to kill the deceased, he would have giveninjury on the vital part of the body of the deceased.

17.However, the aspects whether the petitioner intended to cause thedeath of the deceased or to cause any bodily injury as was likely to causedeath or whether any knowledge could be attributed to the petitioner thatinjury inflicted on the thigh of the deceased, non-vital part of the body, islikely to cause death, will be gone into by the learned Trial Court at anappropriate stage. Likewise, the aspect whether the death of the petitionerhad direct nexus with the injury caused by the petitioner will also beconsidered by the learned Trial Court.

18.Any comment by this Court on the said aspects at this stage is likelyto prejudice the case of the prosecution or of the defence.

19.It is not the case of the prosecution that the petitioner/accused hadgone to the place of deceased, rather the case set up by the prosecutionsuggest that the deceased and other persons were on lookout for thepetitioner/accused, who had allegedly taken away the bundle of Gutka andRs. 800/- from the complainant.In this backdrop the contention of thelearned counsel for the petitioner that the incident happened in suddenfight without pre-meditation when the complainant party and the accusedparty came across each other, cannot be rejected outrightly, but again it forthe learned Trial Court to take an ultimate call at an appropriate stage of thetrial as to whether the benefit of Exception 4 of Section 300 IPC is to beextended to the petitioner or not and whether it is case warrantingalteration of charge from Section 302 IPC to Section 304 IPC.20.However, at this stage, the circumstances noted above coupled withthe fact that the petitioner is in custody since 30.01.2020 and theinvestigation in the matter is complete and the custodial interrogation of thepetitioner is no more required, tilts the balance in favour of the petitioner forgrant of regular bail.

21.The offence underSection 302 IPCis punishablewith lifeimprisonment and while the offence under Section 304 part I IPC, attractsthe sentence of an imprisonment for life or imprisonment which may extendto 10 years. Likewise, the punishment for an offence under Section 304 PartII IPC is maximum 10 years. Notably, no minimum punishment isprescribed for the offence under Section 304 IPC.

22.It would indeed be travesty of justice to keep person in jail for anindefinite period for an offence which is ultimately found not to have beencommitted by him or for which the learned Trial Court may propose toaward punishment of imprisonment which is lesser than the period for whichthe accused has already been incarcerated. Likewise, this Court cannot beunmindful of the well settled law that at pre-conviction stage, there ispresumption of innocence.

23.In the charge sheet, the prosecution has cited as many as 28 witnessesand it is not in dispute that only the first witness is under examination.Inevitably, the trial is going to be protracted one. The delay in trial in thepresent case cannot be attributed to the petitioner as he is already in custody.The circumstances of the present case do not warrant keeping the petitionerin custody for indefinite period to await the outcome of trial.

24.In so far as the petitioner’s involvement in another case FIR No.33/2020 under Section 25 of Arms Act, is concerned, it has been stated thatthe petitioner has already been enlarged on bail in the said case.

25.It is not the case of the prosecution that the petitioner is flight risk.In so far as the apprehension expressed by the prosecution in the StatusReport that the petitioner if enlarged on bail may extend threat to the eyewitnesses, the said apprehension can be dispelled by imposing appropriateconditions.

26.Considering the aforesaid circumstances in entirety, this Court is ofthe view that the petitioner has made out case for grant of regular bail.Accordingly, the petitioner is enlarged on bail subject to his furnishing aPersonal Bond in the sum of Rs. 25,000/- and one Surety Bond of the likeamount to the satisfaction of the Trial Court/CMM/Duty Magistrate, further

subject to the following conditions:-

a) Petitioner shall appear before the Court as and when the matter istaken up for hearing.taken up for hearing.

b) Petitioner shall provide mobile number to the IO concerned whichshall be kept in working condition at all times and he shall not changethe mobile number without prior intimation to the InvestigatingOfficer concerned.shall be kept in working condition at all times and he shall not changethe mobile number without prior intimation to the InvestigatingOfficer concerned.

c) Petitioner shall not indulge in any criminal activity and shall notcommunicate with or come in contact with the witnesses.communicate with or come in contact with the witnesses.27.The petition stands disposed of.

28.It is clarified that the observations made herein above are only for thelimited purpose of deciding the present bail application and the same shallnot be construed as an expression of opinion on the merits of the case.limited purpose of deciding the present bail application and the same shallnot be construed as an expression of opinion on the merits of the case.

29.Copy of the order be forwarded to the concerned Jail Superintendentfor necessary compliance and information.for necessary compliance and information.

30.Order dasti under signatures of the Court Master.

31.Order be uploaded on the website of this Court.

MAY 20, 2024/dss

VIKAS MAHAJAN, J