Netra Pal vs State of U.P.

Surendra Singh, J.—Being aggrieved by the order of refusal of bail dated 7.8.2008 passed by learned Additional District and Sessions Judge, Court No. 6, Mathura, applicant-Netra Pal being prosecuted in Case Crime No. 142 of 2008 under Sections 302 and 504, I.P.C. and Section 27 of Arms Act, Police Station Baldev, District Mathura has preferred instant bail application before this Court.

Heard Sri Tripathi B. G. Bhai, learned Counsel for the applicant as well as learned A.G.A., for the State and perused the material placed on the record.

The background facts of the prosecution case in nutshell are as follows:

On 19.5.2008 at about 2 p.m. the Jeth of the complainant, i.e., the accused-applicant, a retired army personnel, started hurling abuses to his own sister''s son (Bhanja) Narendra, resident of Village Bhakandi, Police Station Rama, District Mathur who had come to her house and when her husband, the deceased, Kaushal asked the applicant to desist from the same, he got infuriated on it and said that he would teach him a lesson and he went inside his house and brought his licensed single barrel gun and opened fire upon the deceased (the husband of the complainant) who died instantaneously on the spot but hoping some life in him, the complainant alongwith others took the deceased to the hospital where the doctors declared him brought dead, thereafter the dead body was taken back to house and leaving the same there, the complainant went to the police station concerned and lodged an F.I.R. naming the applicant.

It is contended on behalf of the applicant that the act on the part of the applicant was impulsive without premeditation arising out of sudden quarrel in heat of passion. There was no previous deliberation or determination for ensuing quarrel. The quarrel suddenly took place for which both the parties are more or less to be blamed. It may be that one of them started it but if the other had not aggravated it by his own conduct, the same would not have taken serious turn. In view of the facts and circumstances of the case the applicant is entitled to the benefit of Exception-4 to Section 300, I.P.C., punishable u/s 304, Part II, I.P.C. and not u/s 302, I.P.C. He has further contended that admittedly the applicant had fired a single shot and there has been no repeated effort on his part, which is an additional circumstance to show that he never intended to commit culpable homicide amounting to murder.

Learned Counsel for the applicant has next argued that in fact aforesaid Narendra had an illicit relationship with the complainant and when the deceased saw both of them in compromising position, he tried to catch hold him and in order to evade his arrest Narendra fired upon the deceased who fall flat on the ground and met with instantaneous death and the applicant has been subsequently falsely implicated in the present crime, giving colour to the prosecution story. He has further submitted that if the prosecution case is accepted in totality Exception 4 to Section 300, I.P.C. is clearly applicable as the alleged assault was the consequence of quarrel and in view of this the applicant becomes entitle to benefit of Exception-4 to Section 300, I.P.C.

Learned Counsel for the applicant has cited cases of State of Karnataka Vs. Siddappa Bansanagouda Patil and another, and Vadla Chandraiah Vs. State of Andhra Pradesh, in support of his contention.

Per contra, learned A.G.A., has submitted that heat of passion requires that there must be no time for the passion to cool down, while in the present case the applicant soon after the altercation, went inside his house to bring his licensed gun. It must have consumed some time which was sufficient for the passion to cool. He then fired shot from very close range hitting the deceased resulting into his death. In fact there was no such sort of altercation or quarrel/fight between them, which could have provoked the applicant for taking such a step against the deceased. For the application of Exception-4 to Section 300, I.P.C. it is to be sufficiently shown that there was a sudden fight/quarrel and there was no premeditation. It must further be shown that the offender/applicant has not taken undue advantage or acted in a cruel or unusual manner. The expression undue advantage, means, "unfair advantage". Therefore, for bringing in its operation, it has to be established that the act was committed without premeditation in a sudden fight/quarrel in the heat of passion upon a sudden quarrel without the offender having acted in a cruel or unusual manner. He has further contended that the submissions made about illicit relationship between the complainant and Narendra (Bhanja of the deceased) is a myth and a figment of imagination. Medical evidence is in no way at variance with ocular version. Looking to the nature of the weapon used and the nature of injury sustained, conspicuously, it transpires that the applicant fired upon the deceased with the intention of causing his death. Thus the offence committed by the applicant would clearly fall within the purview of Section 300, I.P.C. punishable u/s 302, I.P.C. and he is not entitled to the benefit of any of the exceptions enumerated u/s 300, I.P.C. Moreover, the learned A.G.A., has vehemently contended that the above mentioned case laws cited by learned Counsel for the applicant are on different set of circumstances and they do not apply at all to the facts and circumstances of the case in hand.

Considering the totality of circumstances and without expressing any opinion on the merits of the case, I do not find any reason to consider the prayer for bail of the applicant. The prayer for bail is declined at this stage.

The application for bail hereby stands rejected.