JHON TOPO ALIAS JHOHNI Vs. STATE

JUDGEMENT

(1.) . This is a petition for release of the petitioner on bail under Section 439 of the Crl. Procedure Code.

(2.) . In this case the FIR was registered at the instance of Sanjay Kumar who himself was injured on the date of occurrence. It has been alleged that on 12th April, 1988 at about 9.15 PM Sanjay Kumar, complainant alongwith Vivek Jain @ Bobby (deceased) was coming from Basrurkar Market when three boys, namely, John Topo @ Johney (petitioner), Abhey Sarang and Neol Roopaq Kajoor came from the side of Ring Road. It is further alleged that the petitioner gave an exhortation "Yeh Woh Larka Hai jo Aye Din Mujhsey Pangey Leta Hai" and thereafter all the three accused started giving fists and blows to the complainant and deceased Vivek Jain. It is further alleged that the petitioner told the co-accused Abhey Sarang to take out the knife and kill Vivek Jain @ Bobby and thereafter accused Abhey Sarang took out the knife from the dub of his pent and inflicted knife injuries on the abdomen of the deceased Vivek Jain @ Bobby.

(3.) . Mr. Grover, the learned counsel appearing on behalf of the petitioner submitted that even as per the allegations made in the FIR and as per statement of Public Witness -l Sanjay Kumar it could not be a case of murder and at the most it could be a case under Section 304 Part-II Indian Penal Code in as much as there was no prior conspiracy or pre-meditation and the fight was a sudden one. The learned counsel further submitted that there is no allegation that there was any quarrel prior io the date of incident. He also submitted that only one attempt to inflict injury by knife was made. In support of his submissions, he placed reliance on two Supreme Court judgement in the case of Jawahar Lal VS State of Punjab, AIR 1983 SC 284 and in Panchdeo Narain Srivastava VS. Km. Jyoti Sahay, AIR 1983 SC 463.