State of Uttarakhand v. Counsel for the State

Shri Siya Ram, R/o Ashok Nagar Puranpur, Kotwali, Pilibhit, District Pilibhit) under Section 304 of the Indian Penal Code, 1860 in connection with the FIR No. 615 of 2023, registered at Police Station Rudrapur, District Udham Singh Nagar.

2. Heard Mr. Shailabh Pandey, learned counsel for the applicant and Mr. Bhaskar Chandra Joshi, learned A.G.A. for the State.

3. Learned State Counsel submits that Shyam Bihari, the eye-witness of the prosecution, in his statement recorded under Section 161 Cr.P.C, supported the version of the prosecution. To this, the learned counsel for the applicant submits that the submission of State Counsel is incorrect, as the eyewitness of the prosecution, Shyam Bihari, denied the prosecution’s version in his cross-examination and stated that he had not seen the 2 scuffling between the applicant/accused and the deceased, Mukesh.

4. The witness of the prosecution, Suraj Kashyap, is a hearsay witness, as he stated on oath before the Court that he got to know about the incident from someone else.

5. The witness of the prosecution, Smt. Jamuna is also a hearsay witness. She also stated on oath before the Court that she was told about the incident by one Chandrapal telephonically that such an incident had happened between the applicant/accused and deceased.

6. The witness of the prosecution, Chandrapal is also a hearsay witness.

7. It is contended on behalf of the learned counsel for the applicant at the very outset that the injuries sustained by injured-deceased on his head as described in the post-mortem report no. 635 of 2023 and also in the statement of the medical officer- Dr. Jitendra Bhatt, the injury clearly indicates that the deceased-Mukesh probably fell from roof and got severe injury on his head, resulting into fracture and hemorrhage and ultimately due to injury on the vital part of the body, he succumbed to death.

8. To fortify the aforesaid contention, learned counsel for the applicant stress upon the post mortem report (Annexure No. 2), in which, it is evident from the hospital records that the deceased was admitted to Sushila Tiwari Hospital, Haldwani on 25.10.2023 at 06:55 P.M. with alleged history of fall from a height with “Temporo-occipital contusion” and died during the course of treatment on 05.11.2023 at 10:53 a.m.”. This shows that the allegation that the applicant-Motilal hit the victim- Mukesh with a plank of wood (“fanti”) does not hold water. 3 Learned counsel for the applicant further threw

9. light on the statement of the medical officer Dr. Jitendra Bhatt, who conducted the autopsy of the deceased- Mukesh and the cause of death was recorded as “brain hemorrhage”. To this, learned counsel for the applicant submits that it is clear from hospital record that it is a case of fall and not that the deceased was hit by any kind of object on his head to cause him injury.

10. Further, it is contended that there are no eye witnesses to the incident even though the incident happened in such a place where the incident could have been witnessed by other people. The statement of an eye- witness, named, Shyam Bihari, examined as PW1 by the learned trial Court, does not support the prosecution story. The witnesses named above have categorically denied of having witnessed the alleged incident, whereby, it can be said that the applicant brutally beat the deceased-Mukesh with wooden plank (“fanti”).

11. Learned counsel the applicant further submits that there is a delay of 38 days in lodging the FIR; the applicant has no criminal history; he is languishing in jail since 10.11.2023, and, thus it is requested that the applicant may be enlarged on bail.

12. On the other hand, learned State Counsel has strongly opposed the bail application. In reply to the contention of learned counsel for the applicant about the delay in the FIR, learned Government Advocate submits that the deceased being a laborer was not able to lodge the FIR, thereby the delay was caused. Moreover, due to lack of literacy, incident was wrongly noted as 25.10.2023 instead of 24.10.2023 4 While recording the statement of Sita (wife of

13. informant) by the police, she deposed that there are independent witnesses, namely, Shyam Bihari, Sanjay Chaudhary, Amit and Ganesh, who saw the applicant brutally hitting the deceased with a wooden plank (“fanti”).

14. Learned counsel for the State also mentions a person name Pritpal Singh, a person who took the victim/deceased to the hospital and in the post mortem report, a history has also been reported that the deceased was physically assaulted by a co-worker with a wooden plank. He was initially taken to a private hospital at Rudrapur from where he was referred to Sushila Tiwari Hospital, Haldwani on 25.10.2023 at 06:55 pm, where he died during the course of treatment on 05.11.2023 at 10:53 a.m.

15. The post-mortem report also records that the deceased had injury in his brain that was attributed to “patchy subarachnoid hemorrhage noted over left parietal lobe of size 5cm x 5 cm, red. Multiple foci of liquefactive necrosis noted over left lobe of the brain at places”. This shows that the deceased was hit on his head with such a force that it caused trauma and hemorrhage, thereby resulting in his death. The cause of death as opined by the Medical Officer, who conducted the autopsy, is noted as “death is due to septicemia following head injury”.

16. After hearing learned counsel for the parties and on perusal of the records, this Court without going into the merits, finds this a fit case for bail at this stage. Firstly, there is a mention in the post-mortem report that it is a case of “fall from height”; even though there is also a mention that the deceased was assaulted by a wooden 5 plank (“fanti”) by a co-worker. Still, who that co-worker was is not named in the post mortem report. Moreover, when there are two versions of incident as to how the deceased might have sustained injury is subject to corroboration of other evidence.

17. Now the question that arises is whether anybody witness the scuffle or fight between the accused and applicant or not? The answer to this question at this juncture when this Court heard the bail is that it is not clear and it is doubtful also. Though the statements of witnesses, namely, Sita, Shyam Bihari, Sanjay Chaudhary, Amit and Ganesh have supported the prosecution story under Section 161 of Cr.P.C. but that will not undermine the statement on oath before the trial court by the witnesses, particularly an eye witness, named, Shyam Bihari, who categorically refuted the story of the prosecution and said that he did not witness the incident. The testimony of other witnesses is all hearsay.

18. Having regard to the above discussion, this Court is of the view that the applicant deserves bail at this stage. The Bail Application is allowed.

19. Let the applicant – Motilal be released on bail on his executing a personal bond and furnishing two reliable sureties, each in the like amount, to the satisfaction of the court concerned. ___________________ ASHISH NAITHANI, J. Dt: 03.04.2025 Shiksha