Avtar Chand @ Tari vs State Of Punjab

Manjari Nehru Kaul, J

The instant petition has been filed under Section 483 of Bharatiya Nagarik Suraksha Sanhita, 2023 for grant of regular bail to the petitioner in case FIR No.112 dated 14.11.2023 under Sections 323/452/307/34 (and Sections 302/201 added later on) of Indian Penal Code, 1860, registered at Police Station Cantt, District Jalandhar (Annexure P-1).

Learned counsel for the petitioner contends that the petitioner has been in custody since 16.11.2023 in a case based on eyewitness account.

It has been argued by the learned counsel that the petitioner's false implication in the present case finds due credence from the fact that all the material witnesses including the complainant, who is none other than the real nephew of the deceased Harbans, and an alleged eyewitness had not supported the case of the prosecution, as a result of which all these material witnesses were declared hostile. It has been further submitted that despite all these material witnesses having been examined, 36 prosecution witnesses still remain to be examined, therefore, the possibility of the trial concluding in the near future does not arise. In addition, it has been asserted that even otherwise, the petitioner has not been attributed any injuries, much less fatal on the person of the deceased, which have instead been attributed to co- accused Manthan @ Mishu.

Per contra, learned State counsel, while opposing the prayer and submissions made by the counsel opposite, on instructions, has neither disputed the custody period of the petitioner nor has he disputed the stage of trial; on further instructions, it has not been disputed that all the material witnesses, which include the alleged eyewitnesses as well as the complainant, stand examined and had failed to identify the petitioner as being one of the alleged assailants, who inflicted fatal injuries on the deceased. Learned State counsel, however, has reiterated the allegations levelled in the FIR (Annexure P-1), which stands reproduced hereinunder:-

"Statement of Dharmender s/o Naresh pal r/o village Dalwarhi District Bareilly, PS Kashmora (U.P.) presently r/o near Primary School Warring Police Station Cantt Jalandhar age around 24 years phone No. 94656-08230, 1 state that I am am in r/o the aforementioned address and I Punjab since last two years. I collect the wastage (Kabarh) and sell the same. On 12.11.2023 at around 09:30 PM I and my uncle Harbans s/o Rajpal r/o Deep Nagar Jalandhar Cantt and my maternal uncle Jogender s/o Siya Ram r/o village Yousef Nagar Tehsil, and District Badayun, U.P. presently r/o tenant near Janj Ghar village Warring PS Jalandhar Cantt. As it was Diwali festival.

We were busting cracker near Kohli Dairy Deep Nagar Road Jalandhar. While we were busting crackers, a cracker fell near the house of Manthan @ Mishu, s/o Parvesh @ Peshi r/о Н. No. 108 New Deep Nagar Jalandhar. Manthan and Lalit Kumar s/o Babba r/o Golden Avenue Deep Nagar Jalandhar along with another person (1 can identify him on seeing him) started abusing us. They brought a sword from inside their house. They attacked me and my uncles Jogender and Harbans with this sword. Firstly. Manthan @ Mishu attacked me with an intention kill me with this sword and it hit my head. I fell on the ground.

The 2nd attack hit me on my left foot. To save me, my uncle Jogender came forward then Lalit snatched the sword from Manthan @ Mishu and he attacked my uncle Jogender and it hit on his right hand and he fell down and he was injured of his left arm. My other uncle Harbans heard the noise and he also appeared there. He tried to pacify us. Then the 3rd unidentified person challenged and shouted, 'catch him also teach him a lesson' My uncle Harbans got scared and he fled from there and he went to the Kabarhi shop and hid him self in a quilt (Razai) I also followed him and came to the shop of Kabarhi. I saw that Manthan @ Mishu with an intention to kill my uncle Harbans he attacked him with the sword and it hit him on the left side of his head. Then again Manthan @ Mishu with an intention to kill my uncle Harbans he attacked him with the sword and it hit him on his right eyebrow. Then Lalit took the sword from Manthan @ Mishu and attacked my uncle Harbans with an intention to kill him, he attacked him with the reverse side of the sword and it hit him on his left eye. He attacked him again this time it hit his left arm back side. The aforementioned persons attacked me and my uncles with sword. They attacked us with an intention to kill us. The root cause of quarrel is busting of crackers. I and my uncles were severely injured. Then the neighbours arranged a us case. conveyance and took to Civil Hospital Jalandhar. There doctor prepared our MLR and gave us first aid. As my uncle Harbans was badly injured, the doctor referred my uncle Harbans to Amritsar. I will pursue the Action be taken against the aforementioned. I have heard the statement and I admit it to be correct Sd/- (Hindi) Dharmender attested by PS Jalandhar Cantt date Ramesh Kumar SI 14.11.2023. Action taken by police: Today I SI. along with ASI Hardyal Singh 1095, HC Depinder Singh 3538, HC Rajinderpal 2885, Sr. Ct Navjit of the Singh 3459 was present at the PS. MHC police station gave an information on telephone that a telephone call has been received from civil hospital Amritsar that previous night near Baba Da Dhaba Deep Nagar a quarrel had taken place and in this quarrel injured Harbans Singh was admitted in civil hospital Jalandhar, later he was referred to Amritsar. You reach at hospital and take necessary action. I. SI talked on telephone to the relatives of the injured Harbans and came to know that MLRs in connection with this quarrel be collected from guard in-charge Civil Hospital Jalandhar. Then I SI, along with HC Depinder Singh 3535 reached Civil Hospital Jalandhar. From the guard in-charge MLRs GSA/752/CHJ/2023 in respect were collected. In MLR of Dharmender. in this MLR doctor has mentioned total two simple and blunt injuries and in MLR GSA/571/CHJ/2023 dated 12/13-11-2023 in respect of Jogender son of Siya Ram r/o Deep Nagar Jalandhar, in this MLR doctor has mentioned total two simple and blunt injuries and in MLR GSA/742/CHJ/2023 dated 12/13-11-2023 in respect of Harbans s/o Rajpal r/o Deep Nagar Jalandhar in this doctor has mentioned 04 injuries injury Nos. 1,2,and 3 KUO Rest Simple blunt and injury No. 1 and 2 Adv. Surgery and radiology opinion and injury No. 3 Adv. Eye opinion. All of the MLRs belong to a single party only. These were handed over to me SI. Now along with aforementioned Dharmender came to the police station. He got his aforementioned statement recorded with me SI. His statement was recorded and read over to him and he was made to understand the same. He admitted his statement to be correct and signed the same in Hindi. I, SI attested the same. From the statement and the results of MLRs a case is made out under sections323, 452, 307, 34 IPC. A written note was prepared and for registration of FIR and same was handed over to MHC of the police station. FIR be registered and No. of the same be intimated. PCR and senior police officers be intimated. Special reports be prepared and be forwarded to senior police officers. I, SI along with police employees, complainant and along with a laptop and a printer travelling by private vehicles proceed to the site of incidence. Sd/- (Punjabi) SI Ramesh Kumar Police Station Cantt area police Cantt Jalandhar date 14.11.2023 Jalandhar at 12:30 AM. Action taken at police aforementioned written note at station: On receipt of the the police station an FIR was registered under the aforementioned sections/Acts. Original written note and a copy of FIR are sent to the SI for enquiry by hand through Ct Amritpal Singh 1108. Control Room and senior police officers were intimated. Special reports prepared and forwarded to the Area Magistrate and the senior police officers by hand through Ct. Sarabjit Singh 3158 Report No. 3 concluded dated 14.11.2023."

Learned State counsel, on submitted that a CCTV footage of the further instructions, has also place of occurrence had been collected by the investigating agency, wherein co-accused Manthan @ Mishu was clearly visible inflicting injuries upon the deceased. On being pointedly asked as to whether any injury had been attributed to the petitioner, learned State counsel, on instructions, has replied in the negative, although asserting that the petitioner was very much present along with the other co-accused at the time of the alleged occurrence.

I have heard learned counsel for the parties and perused the relevant material placed on record.

The petitioner has been in custody since 16.11.2023. The possibility of the trial concluding in the near future seems remote in view of the fact that as on date, only 6 witnesses stand examined out of the 42 cited by the prosecution. Since all the material witnesses stand examined, there can now be no apprehension of the petitioner intimidating/pressuring the remaining witnesses or tampering with evidence. Also keeping in view that no injury, much less fatal, has been attributed to the petitioner, this Court deems it fit to admit the petitioner to bail.

Accordingly, the instant petition is allowed, and the petitioner be admitted to bail on his furnishing bail/surety bonds to the satisfaction of the Trial Court/Duty Magistrate concerned.

However, it is made clear that anything observed hereinabove shall not be construed to be an expression of opinion on the merits of the case.

Needless to add here, in case the petitioner is found misusing the concession of bail, the State would be at liberty to approach this Court to seek cancellation of bail to him.