Roshan Lal vs State of H.P

Sureshwar Thakur, J.

1.Previously this Court had, upon Cr.M.P(M) No. 1028 of 2015, hence ordered for its being dismissed, as withdrawn. However, subsequently the

petitioner has reinstituted, the instant bail application before this Court. The changed circumstances contended, by the learned counsel for the

petitioner, for hence rendering the petition being nowat maintainable, is, comprised in the testifications’ of the prosecution witnesses, being,

thereafter recorded, with unanimous echoings borne therein, of a scuffle occurring inter-se the deceased, and, the accused, in course whereof, the

accused delivered fist blows, upon, the stomach of the deceased. The learned counsel for the petitioner has contended with much vigor, that, with the

post mortem report, not, pronouncing the factum of existence of any external injury, on, the stomach of the deceased, and, with the prosecution

witnesses’ testifying, of the deceased, at the relevant time, purportedly being in an inebriated condition,(a) therefore, the demise of the deceased

being not perse attributable to the fist blow delivered by the accused, upon, the deceaseds’ stomach, rather it being attributable to a reason other

than the aforesaid striking of the fist blow, on, the deceaseds’ stomach. However, when at this stage, the author of post mortem report, has, not

been yet led into the witness box, for his being hence confronted with the apposite post mortem report, as, authored by him, nor also his being hence

confronted with an opinion recorded therein, of alcohol being found in the viscera of the deceased, (b) therefore, it is not permissible to conclude that

hence the demise of the deceased being not exclusively besides singularly not attributable to the fist blows purportedly inflicted by the accused, on the

deceaseds’ stomach.

Be that as it may, the learned counsel for the petitioner has contended with vigor, by placing reliance upon the testifications, of the prosecution

witnesses, wherein they echo, of there occurring a scuffle inter-se the accused, and, the deceased, in course whereof, the accused delivered a fist

blow, upon, the deceaseds’ stomach, (a) therefrom, he proceeded to make an espousal, rested, upon exception 4 to Section 300 of Indian Penal

Code, provisions whereof, are extracted hereinafter, qua with the accused purportedly striking fist blows, upon, the deceaseds’ stomach, and,

striking thereof occurring in a sudden fight besides in the heat of passion, (b) thereupon prima-facie, at this stage, within the ambit of Section 302 of

IPC, no offence being made out against the accused rather an offence within exception 4 vis-Ã -vis Section 300 of Indian Penal Code rather being

constituted, wherefrom, he further contends that indulgence of bail being granted to the bail applicant.

“Exception 4.â€"Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden

quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. Explanation.â€"It is immaterial in such cases

which party offers the provocation or commits the first assault.â€​

3.However, prima-facie at this stage, even if assumingly the espousal of the learned counsel for the petitioner, is, rested upon the testifications’, of,

the prosecution witnesses, holding echoings qua eruption of a sudden scuffle inter-se the accused, and, the deceased, and, also bears out the further

ingredients, of, the apposite exception 4 to Section 300 aforesaid, (a) yet the further ingredients thereof, of, the accused, during the, course of the

scuffle, not taking undue advantage or acting in a cruel or unusual manner, is, prima-facie repelled, by the viscera of the deceased containing alcohol,

(b) wherefrom it is rather befitting, to, conclude of both being not equally empowered rather prima-facie the bail petitioner being more empowered

besides possessing more physical strength vis-Ã -vis the inebriated thereat deceased, (c) wherefrom it is also befitting to conclude of hence prima-

facie, the accused rather taking undue advantage of the inebriated condition, of the deceased. Consequently, at this stage the learned counsel for the

petitioner cannot rear any espousal qua attraction of exception 4 to Section 300 IPC vis-Ã -vis the accused. In view of the above, the instant petition is

dismissed, as also, the pending applications if any. Any observation made hereinabove, shall not be taken, as, an expression of opinion, on the merits of

the case, and, the learned trial Court shall decide the matter uninfluenced by any observation made herein above.