MOHAN Vs. STATE OF TAMIL NADU

JUDGEMENT

(1.) THIS is a petition on behalf of accused Mohan for grant of bail under Section 439 of the Code of Criminal ProcedureBriefly stated the case of the prosecution is that co-accused Pradeep had been arrested by the police in the case under the Nareotic Drugs and Psychotropic Substances Act. It is alleged that Pradeep suspected that deceased Balbir Singh passed on information to the police and thereby he was arrested and in view of this Pradeep was sore against his uncle Balbir Singh (deceased). It is further alleged that on 10th May, 1992, at about 6:30 p.m. after attending the Panchayat of Sansi-BiradariT deceased Balbir Singh, his wife Harnam Kaur and his two sons namely, Rajpal and complainant Manoj Kumar were proceeding towards the gate of a temple near a park in Pashim Pun, to board their Maruti van when all of a sudden Pradeep, his son Vikram, his brother Sanjay and petitioner who is the husband of the sister of Pradeep came out from the bushes. It is also alleged that Vikram was armed with a hockey stick. It is further alleged that Pradeep accosted the deceased and told him that he had got him arrested by the police in a case of smack and then he gave an exhortation Aaj Tujhe Zinda Nahi Chodunga. At this the deceased is reported to have told Pradeep that he was harbouring unnecessary misunderstanding. It is then alleged that the petitioner and co-accused Sanjay caught hold of the deceased and accused Pradeep took out some knife like object from the right side of his pant and attempted to give a blow on his chest but the deceased tried to ward of the same and in this process the blow landed on his left arm and resulted into profuse bleeding. It is further alleged that when sons of the deceased, namely, Rajpal and Manoj tried to intervene, co-accused Vikram struck his hockey on the right side shoulder of Rajpal and then they all raised alarm and the accused ran away. The deceased was taken to D.D.U. Hospital where he was declared as brought dead. Thereafter the case was registered against all the four accused under Section 302/323/120-B/34 IPC at P.S. Panjabi Bagh. Mr. Mathur, learned senior Counsel appearing on behalf of the petitioner submitted that in the present case the intention to kill the deceased was lacking. He submitted even the main accused Pradeep had allegedly inflicted the knife injury on the arm which is not a vital part and as such even according to the allegations made in the FIR the case against the main accused could be under Section 304 Part-II and not under Section 302, IPC. He further stated that even as per allegations made in the FIR, the role assigned to the petitioner is that he alongwith co-accused Sanjay caught hold of the deceased while accused Pradeep took out some knife like object from the right side of his pant and inflicted the knife injury. He submitted that the petitioner could not possibly have the know ledge that the accused Pradeep was carrying a knife in his pant. The learned Counsel contended that in terms of these allegations, there could be a case of under Section 323/34 IPC against the petitioner and in such a case, the petitioner could be released on probation under the Probation of Offenders Act, 1958. In support of his contention the learned Counsel placed reliance on a Division Bench ORDER of this Court reported in the Case of Paramjit Singh v. The State. Mr. Sarin, the learned Counsel appearing on behalf of the State, however, submitted that from the allegations made in the FIR, it is clear that it is a case of pre-planned murder. He submitted that as per allegations, all the accused were hiding in bushes and as soon as the deceased with his family members happened to pass near that place, they all of a sudden came out of the bushes and accosted the deceased. From the allegations it is further clear that accused Pradeep was harbouring ill will against the deceased on the ground that he had got him arrested in a case of smack. He further submitted that he fore the knife injury was inflicted on the deceased, there was an exhortation by the co-accused Pradeep that he would not let the deceased go alive. He, therefore, contended that there was common intention of the accused to kill the deceased. He further submitted that when the two sons of the deceased tried to intervene, one of them was also given hockey blow by co-accused Vikram. The learned Counsel also referred to the post mortem report which shows that the depth of the injury was 8.5 cm and the doctor has given his opinion that the injury was sufficient to cause death in ordinary course of nature. He, therefore, contended that the knife blow was given with such a force that it resulted into 8.5 cm deep injury. The learned Counsel, therefore, contended that petitioner should not be released on bail. I have given my thoughtful consideration to the submissions made by the learned Counsel for the parties and perused the records. In the case of Paramjit Singh (supra), on the basis of the evidence, it was held that there could not be any intention on the part of the main accused that the injury should be such as would cut the blood vessel and the injury was given on the thigh. But the facts in the present case are different. In the present case the knife was inflected with such a great force that it resulted in 8.5cm deep injury and further there was an exhortation, by the co-accused Pradeep that he would not let the deceased go alive be there the knife blow was given and the petitioners were hiding in bushes. I am, therefore, of the view that it is not a fit case to grant bail to the petitioner. In this connection a reference may be made to one of my earlier ORDER reported in the case of Ved Parkash @ Pappu v. State. Accordingly the petition is dismissed. I may, however, point out that the observations given by me hereinabove will not have any bearing on the merits of the case. Petition dismissed.