Virender Sehgal @APPELLANT@Hash State of Himachal Pradesh

Sureshwar Thakur, J

The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., wherein he seeks indulgence, of his being ordered to

be released from judicial custody, whereat he is extantly lodged, for, his allegedly committing offences, constituted under Section 302, read with

Section 34 IPC, under FIR No. 165 of 2018, registered with Police Station, Solan.

The prosecution case, is, built upon a narrative, qua both the accused Virender Sehgal and Arun Kumar, along with the deceased victim, at about 5

p.m., on 11.6.2018, in proximity, to, the juice khokha of one Kuldip Kumar, @ Kalu, hence consuming liquor, and, thereafter, theirs proceeding

elsewhere, and, subsequently, theirs re-arriving in proximity, to the dhara of Kuldip Kumar. The level, of, inebriation, beset upon the afore accused, is,

borne in a quantum of 173.03 mg percent in urine, and, 223.67 mg percent, in the blood, vis-Ã -vis, Arun Kumar, and, 171.99 mg percent in urine, and,

173.07 mg percent, vis-Ã -vis, blood of Virender Sehgal, (i) whereas the level of intoxication, of, the deceased victim, is borne, in, a quantum of 46.75

mg percent, (ii) apparently, hence the level of intoxication at the relevant time, of the afore accused, is higher than the level of intoxication, of the

deceased/victim. The deceased victim, as unraveled by the report of the Doctor concerned, who conducted hence autopsy on his body, suffered head

injuries. The prosecution ascribes, qua the afore injuries suffered by the deceased, being a sequel, as, embodied in the statement rendered under

Section 161 Cr. P.C., by a purported ocular witness to the occurrence, one Kuldip Kumar, (iii) who, after being apprised by one Kalu about a scuffle,

interse both the accused and deceased, had proceeded, to, the closest sightable proximity to the relevant site of occurrence, with a clear disclosure

therein qua his noticing co-accused Arun Kumar, pushing the deceased/victim below the dunga.

The afore quantum of inebriation, of both the accused, quantum whereof, is higher than of the accused, and, with both the afore accused also

suffering injuries, on their respective persons, does, at this stage, constrain this Court, to assign veracity to the prosecution case qua all the accused,

hence indulging, in a suddenly erupted scuffle.

The learned counsel for the appellant/accused, one Arun Kumar, being permitted to withdraw the latters’ bail petition, thereupon with his being

the principal, in, the first degree, hence it is incumbent, upon, this Court to discover, the, trite factum (i) whether bail-applicant Virender Sehgal, at the

relevant time, was sharing a common intention with him, and, as such alongwith him, he is amenable, for, facing a charge drawn, under Section 302

IPC, read with Section 34 IPC. In making an adjudication, upon, the aforesaid trite factum, all the afore factual conspectus’, existing hereat, a)

vis-Ã -vis, a, sudden scuffle erupting interse the deceased and both the accused, b) of both the accused suffering injuries upon their respective

persons, C) accused Arun Kumar, being assigned, by the afore ocular witnesses to the occurrence, the, incriminatory role, of, his giving a fatal push to

the deceased, are enjoined to be borne in record d) thereupon, at this stage, prima-facie, with co-accused Virender Sehgal, not, wielding any weapon

of offence, nor his giving a fatal push to the deceased victim, as a corollary whereof, e) when no material exists on record, demonstrative, of, the bail-

applicant, holding the deceased, to, facilitate the principal accused Arun Kumar, to give a fatal push to the deceased, f) nor any material existing on

record qua his aiding the principal accused, in the latter beguiling or intoxicating the deceased victim, to arrive at a place, where it would facilitate, the,

principal accused, to, give the fatal push to the deceased, hence, at this stage, it is difficult to conclude, that, accused/bail-applicant Virender Sehgal,

hence shared a common intention or a joint intention, along with the principal accused, in, the latter, giving, the fatal push, to the deceased.

Consequently, at this stage, this Court is, of the prima-facie view, that the bail-applicant Virender Sehgal may not be amenable for committing any

offence, embodied under Section 302 IPC, read with Section 34 IPC. In sequel, when the bail-applicant is suffering judicial incarceration, for about

four months, and, when no material being placed on record by the prosecution, at this stage, that in the event of bail being granted to the bail-applicant,

there is hence every likelihood of the bail-applicant fleeing from justice, or tampering with prosecution evidence, hence this Court is fortifyingly

constrained, to, make an order that the bail-applicant shall be released from judicial custody, subject to compliance with the hereinafter extracted

conditions:-

(i) that the bail applicant shall furnish personal bond in the sum of Rs.2,00,000/- with two sureties in the like amount to the satisfaction of the learned

Judicial Magistrate concerned.

(ii) that the bail applicant shall join the investigation, as and when required by the Investigating Agency;

(iii) that he shall not directly or indirectly, make any inducement, threat or promise to any person acquainted with the facts of the case so as to

dissuade him from disclosing such facts to the Court or to any police officer;

(iv) that he shall not leave India without the prior permission of the Court ;

(iv) that he shall deposit their respective passports, if any, with the Police Station concerned; and

(vi) that in case of violation of any of these conditions, the bail granted to the petitioners shall be forfeited and he shall be liable to be taken into

custody.

Any observation made hereinabove, shall not, be taken as an expression of opinion on the merits, of the case, and, the trial Court shall decide the

matter uninfluenced by any observation made hereinabove.