Crl. Misc. No.M-27167 & 29413 of 2011 1 .. IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Misc. No. M- 27167 of 2011 (O&M) Date of Decision: February 2nd, 2012 Rajender @ Kalu and another .... Petitioners Versus State of Haryana .... Respondent 2. Criminal Misc. No. M- 29413 of 2011 (O&M) Date of Decision: February 2nd, 2012 Gugan .... Petitioner Versus State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK 1.Whether Reporters of local papers may be allowed to see the judgment? 2.Whether to be referred to the Reporters or not? 3.Whether the judgment should be reported in the Digest? Present Mr. Bijender Dhankar, Advocate, and Mr. Ashwani Gaur, Advocate, for the petitioners. Mr. Vikas Malik, AAG, Haryana, for the State. VIJENDER SINGH MALIK, J. Rajender alias Kalu, Jagbinder alias Billu in Criminal Misc. No. M-27167 of 2011 and Gugan in Criminal Misc. No. M-29413 of 2011 have sought regular bail in a case registered by way of FIR No. 256 Crl. Misc. No.M-27167 & 29413 of 2011 2 .. dated 8.4.2011 at Police Station Sadar, Hisar for an offence punishable under sections 302, 216, 147, 148 read with section 149 of Indian Penal Code. It is a case where, to begin with, FIR No. 255 was lodged at Police Station, Sadar, Hisar by Mahabir against Kuldeep alleging that on 7.4.2011 at about 9.00 PM, Kuldeep (deceased) scaled the wall of his house and went up to the balcony where his brother's wife, named, Jyoti was breast-feeding the child and he outraged the modesty of said Jyoti. It was his further case that when Jyoti cried, they were attracted and they gave beating to Kuldeep and had also tied him with a rope. On the same day, the police registered FIR No. 256 on the statement of one Anil Kumar son of Satbir, who has stated that Kuldeep and Surajmal were present at the bus stand of the village on 7.4.2011 at about 8.30 PM and at that time, Shiv Kumar, Amar Lal, Ramphal, Gugan and others including the two petitioners, namely, Rajender alias Kalu and Jabginder alias Billu came there armed with various weapons and had assaulted Kuldeep. When an alarm was raised and other people started arriving, the assailants are said to have left the place. Mr. Ashwani Gaur, learned counsel for the petitioner, Gugan has submitted that the Gugan had undergone surgery for removal of appendix and according to him, he was discharged on 6.4.2011 and that he could not have been in a position to take part in the occurrence that took place on 7.4.2011. He has further submitted that there was no reason for the police to have found the version contained in FIR no. 255 to be doubtful. He has further submitted that Anil Kumar cannot be believed to have seen the occurrence and his statement has been Crl. Misc. No.M-27167 & 29413 of 2011 3 .. concocted. He has further submitted that the police has secured the presence of Kuldeep (deceased) from the house of Mahabir and this fact is inconsistent with the case set up in FIR No. 256. Mr. Bijender Dhankar, learned counsel for the petitioners, Rajender alias Kalu, Jagbinder alias Billu has submitted that the role assigned to the two is of catching hold of Kuldeep. He has submitted that the petitioners are in custody since 10.4.2011 and that the trial against them has made no progress. Learned State counsel has submitted, on the other hand, that the post mortem report describes the injuries found on the person of Kuldeep and those injuries show that the version of FIR No. 255 is not correct. According to him, as alleged by Mahavir in FIR No. 255, if they had given slap and fist blows to Kuldeep, the injuries found on the person of the deceased should not have been there. He has submitted that this itself shows that version contained in FIR No. 255 is not correct and the petitioners are not entitled to be released on bail. Besides the fact that Gugan is said to have undergone a surgery for removal of appendix and has remained hospitalized from 4.4.2011 to 6.4.2011, which would prima facie show that he would not have been in a position to move freely, what to talk of taking part in the occurrence on 7.4.2011, the FIR contained version also attributes no injury to him. Though, in the FIR it is mentioned that Gugan was having an iron rod in his hand, yet the FIR fails to mention any injury to have been caused by Gugan to Kuldeep (deceased). However, in the case of other two petitioners, they are alleged to have caught hold of Kuldeep. The persons holding the victim by catching him are responsible in the Crl. Misc. No.M-27167 & 29413 of 2011 4 .. same manner in which the persons giving fatal blow is responsible. The person holding the victim leaves the victim defenceless. He is not even in a position to escape. Keeping in view the aforesaid discussion, I accept Criminal Misc. No. M-29413 of 2011 and allow bail to petitioner Gugan to the satisfaction of learned Chief Judicial Magistrate, Hisar and dismiss Criminal Misc. No. M-27167 of 2011 filed by Rajender alias Kalu, Jagbinder alias Billu. (VIJENDER SINGH MALIK) JUDGE February 2nd, 2012 som