In the High Court of Punjab and Haryana at Chandigarh ...... (1) Criminal Misc.-M No.32835 of 2008 ..... Date of decision:29.1.2009 Harsh Jain .....Petitioner v. State of Punjab .....Respondent .... (2) Criminal Misc.-M No.712 of 2009 ..... Saras Jain .....Petitioner v. State of Punjab .....Respondent .... Present: Mr. R.S. Cheema, Senior Advocate with Mr. R.K. Trikha, Advocate for the petitioners. Mr. Abhishek Chautala, Assistant Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. This order will dispose Criminal Misc.-M No.32835 of 2008 filed by Harsh Jain son of Narinder Kumar Jain and Criminal Misc.-M No.712 of 2009 filed by Saras Jain son of Vijay Jain. The petitioners seek regular bail in a case registered against them for the offences under Sections 302 and 120-B IPC. The FIR in the case has been registered on the statement of Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [2] Nand Lal whose nephew Sandeep Kumar alias Sethi has died in the incident that occurred on 28.5.2008. It has been alleged by the complainant that his nephew Sandeep Kumar alias Sethi (deceased) aged 20 years has been working at the cloth shop of Vijay Jain, Abhey Jain and Narinder Kumar Jain sons of Nek Chand Jain. The deceased for 3-4 years has been staying with them. Due to panchayat elections, Sandeep Kumar alias Sethi had come to the complainant. After taking meals Sandeep Kumar alias Sethi on 28.5.2008 at 7.00 a.m. had gone for his work. He was hale and hearty at that time. At about 10.00 p.m. Vijay Jain came to the village of the complainant and informed that Sandeep Kumar alias Sethi had died. On this the complainant along with his brother Mohinder Pal and other residents of the village reached the spot and found that Sandeep Kumar's dead body was lying on the ground in the room situated at Vijay Jain's `Bara' (compound). His mobile phone was lying on the cot whereas his wallet and wrist watch were lying on the floor towards his feet. From the circumstances at the spot the complainant was of the firm belief that Vijay Jain, Abhey Jain, Narinder Jain aforesaid in connivance with Harsh Jain (petitioner in Criminal Misc.- M No.32835 of 2008) and Saras Jain (petitioner in Criminal Misc.-M No.712 of 2009) had committed the murder of Sandeep Kumar alias Sethi aforesaid. Sandeep Kumar alias Sethi had informed the complainant that someone had stolen Rs.50,000/- of his employer and the later had been suspecting their workers. It was quite possible that the Jain brothers might have committed the murder of Sandeep Kumar alias Sethi due to that reason. Sandeep Kumar alias Sethi also informed that they had been suspecting about his character. On the aforesaid allegations, the FIR in the Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [3] case has been registered. It may be noticed that the primary allegations that were levelled in the FIR were against Vijay Jain, Abhey Jain and Narinder Jain, who are not petitioners. The allegations against the petitioners Harsh Jain (petitioner in Criminal Misc.-M No.32835 of 2008) and Saras Jain (petitioner in Criminal Misc.-M No.712 of 2009) are that they had connived with the other accused. As per allegations of the complainant the entire family of Vijay Jain, Abhey Jain and Narinder Jain has been roped in. The Police investigated the case and filed the final report (challan) dated 22.10.2008 (Annexure-P.10). It has been observed in the challan that during the course of investigation it had come to light that on 24.5.2008 an amount of Rs.50,000/- was stolen from the cloth shop of Jain Brothers and they had been suspecting Sandeep Kumar alias Sethi (deceased). Sandeep Kumar alias Sethi had gone to his Village Malewal, Police Station Kathgarh on 26.5.2008 in connection with the village panchayat elections. He came back to the shop on 28.5.2008. Then Jain brothers inquired from him about the amount of Rs.50,000/- whereupon in a fit of rage he went to the place of stay i.e. room constructed at the plot of Jain Brothers. At about 11/11.30 a.m., all the aforesaid five accused asked him telephonically to come to the shop and when he did not come then all the five accused went to him in the residential room where they had an altercation. Vijay Jain became furious and he caught hold of Sandeep Kumar by his neck. Saras Jain (petitioner) according to the complainant pushed him forcibly whereupon his head struck against the wall and when Sandeep Kumar alias Sethi (deceased) had got up having caught hold of his neck Vijay Jain started pressing the same, then Saras Jain (petitioner) Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [4] forcibly pressed the testicles of Sandeep Kumar alias Sethi whereas Narinder Jain and Abhey Jain gave him multiple slaps and went back to their shop. Thereafter, all the five accused went to their `Bara' (compound) at 4.00 p.m. Then Sandeep Kumar alias Sethi was suffering in pain. At the time of serving him with water Sandeep Kumar alias Sethi succumbed to his injuries. The accused had evaded their arrest and were arrested on 28.8.2008 and were confined in jail. It may, therefore, be noticed that insofar as Harsh Jain (petitioner in Criminal Misc.-M No.32835 of 2008) is concerned he has not been attributed any specific role. However, Saras Jain (petitioner in Cr. Misc.-M No.712 of 2009) is alleged to have forcibly pushed Sandeep Kumar alias Sethi whereupon his head had struck against the wall. Besides, he is alleged to have pressed the testicles of the deceased as well. To substantiate the said allegations the investigating authorities during the course of investigation recorded the statement of Prem Lal son of Hans Raj and one Des Raj son of Fala Ram and Chhinda who is stated to have served water to Sandeep Kumar alias Sethi (deceased). A perusal of the statement of Prem Lal under Section 161 Cr.P.C. recorded on 6.6.2008 (Annexure- P.3) shows that he was running a cycle repair shop in his mohalla for the last 34-35 years. The `Bara' (compound) of Vijay Jain, Abhey Jain and Narinder Jain brothers is located in front of his shop. On the other side of the street for servants of Vijay Jain etc. a room is constructed and water hand pump had been installed. The servants including Sandeep Kumar alias Sethi used to sleep in the said `Bara' (compound). After locking the room, they used to go to the cloth shop of Vijay Jain (brothers). Prem Lal Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [5] used to take water from the water pump installed in the `Bara' of Vijay Jain. Vijay Jain and Prem Lal were class mates. On the day of the incident i.e. 28.5.2008 at 11.00 a.m. the five brothers came to the plot and after staying there for some time had gone away. It was noticed that Sandeep Kumar alias Sethi (deceased) was present on the outer gate and he was finding it difficult to stand even after having the support of the corner. He was holding a jug in his hand. He had asked Prem Lal to bring water which he had to drink. On this Chhinda son of Milkhi Ram, Priest in Jain Pasla Temple brought water. Sandeep Kumar alias Sethi went to the room in the plot. He was walking with difficulty. Prem Lal asked him as to what had happened and he replied that nothing was wrong with him. Thereafter, Sandeep Kumar alias Sethi came to the shop at 3.00 p.m. and laid on the bench and Prem Lal went to the platform and started playing cards. At about 4.00 p.m., Vijay Jain, Abhey Jain, Narinder Jain, Harsh Jain and Saras Jain came to the plot and went away after staying there for about half an hour. Prior to that on 26.5.2008, all of them had come on the motor cycles and scooters to the plot. On 27.5.2008, five brothers had again come on the motor cycles and scooters to the plot. On 28.5.2008, at 8.00 p.m. Prem Lal closed his shop and on 29.5.2008 at about 9.00 a.m. he came to know that Sandeep Kumar alias Sethi had died at night. As per post-mortem report dated 29.5.2008 (Annexure-P.8), the cause of death in this case, it was observed, would be declared after receiving report from the Chemical Examiner to Government of Punjab and from the Professor and Head of Department of Pathology, Government Medical College, Amritsar. Thereafter, the Board of three doctors vide their Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [6] opinion dated 3.7.2008 (Annexure-P.9) opined that having received report No.1737 dated 13.6.2008 from the Chemical Examiner to Government of Punjab, Kharar and report dated 26.6.2008 from Associate Professor, Pathology Department, Government Medical College, Amritar, the Board of doctors were of the opinion that the cause of death in the case was head injury which was ante-mortem in nature. Des Raj son of Fala Ram has appeared as PW-1 in the witness box and he has resiled from his statement. Certified copy of the statement of Des Raj has been placed on record. It may be noticed at this stage that it cannot be said that there is any evidence of a direct nature so as to show that the petitioners had caused the head injury on the person of the deceased Sandeep Kumar alias Sethi. In the statement of Prem Lal, which was recorded under Section 161 Cr.P.C. it is not his case that he had seen Saras Jain pushing Sandeep Kumar alias Sethi which resulted in his head being struck against the wall. However, this aspect is to be considered and gone into by the trial Court after evidence has been led. In the aforesaid facts and circumstances, it would be just and expedient that concession of bail is granted to the petitioners. Accordingly, both the criminal miscellaneous petitions are allowed and the petitioners Harsh Jain (petitioner in Criminal Misc.-M No.32835 of 2008) and Saras Jain (petitioner in Criminal Misc.-M No.712 of 2009) on their furnishing personal bonds and surety each to the satisfaction of the learned Chief Judicial Magistrate, Nawanshahar shall be admitted to bail. It is made clear that nothing observed herein shall be construed as an expression of opinion on the merits of the case and the learned trial Court shall consider the case on the basis of evidence and Cr. Misc.-M No.32835 of 2008 & Criminal Misc.-M No.712 of 2009 [7] material as adduced before it. January 29, 2009. (S.S. Saron) Judge *hsp*