SHOKIN NATH Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) This is a bail application under section 439 Cr. P. C.

(2.) The brief facts of the case are that on 20-6-75 at about 12.00 O' clock in the day Shokin Nath and four others raided the house of Mohan Jogi, who was married to Mst. Gajki daughter of Shokin Nath. Shokin Nath attacked Mohan Jogi with a Dharia and thereby injured his right thumb. When his sister Chhodki aged 10 years intervened, the Dharia while aimed at Mohan for the second time, fell upon Mst. Chhodki and killed her instantaneously. The accused then abducted Mst. Gajki. Shokin Nath was arrested on 5-6-75 on the charge of aforesaid murder. But the investigation could not be completed within 60 days of his arrest. The learned judicial Magistrate by his order dated 6-8-75 granted him bail under the provision to sub-sec. (2) of section 167 of the Code of Criminal procedure. But while committing the accused to the court of session on 1-9-75, the learned Judicial Magistrate committed him under custody. The accused Shokin Nath then made a bail application to the learned sessions judge, who by his order dated 20-9-75 granted bail to three others but refused that of Shokin Nath. Shokin Nath then moved this court under section 439 Cr. P. C. for bail but it was rejected by me on 1-3-1976. Shokin Nath has made this second application. The learned Public Prosecutor opposed the bail application. I have heard arguments.

(3.) As regards the merits of the case the learned counsel for the applicant submitted that no case under section 302 is made out because the blow which killed Mst. Chhodki was not aimed at her. It fell upon her per hance. In similar circumstances, in Hardeo Singh Vs. State of Punjab, AIR 1975 SC 179 it was held that the accused was guilty not of murder but culpable homicide under section 304 part I. In Gulab Singh Vs. State of Rajasthan, 1975 Cri.L.J. 695 a similar view was taken. In Shiv Singh Vs. State, 1975 Cri.L.J. 704 the case was of a spear blow accidentally struck but it was held that it was covered not under section 302 IPC. but part II of 304 IPC. In Dev Nath Vs. The State, 1952 RLW 394 a blow on the head was considered to fail under section 325 IPC. and not under section 304 IPC.