1996 Supreme(MP) 1107

IN THE HIGH COURT OF MADHYA PRADESH
R.S. GARG, J.
Shiv Shankar Chouksey - Appellant
Vs.
State of M.P. - Respondents
Misc. Cr. Case No. 2750 of 1996 (J)
Decided On : 08-10-1996

Headnote:(1) Criminal Procedure Code, 1973 – S. 439 – offence under S. 304B IPC – temporary bail not abused – offence alleged to have been committed by accused after bail not prima – facie made out – – deceased left death note – accused entitled to regular bail.

       (2) Indian Penal Code, 1860 – S. 304B – temporary bail not abused – death note left by deceased – accused entitled to regular bail.

        Short Note

       1. The present applicant was arrested by the police Seoni in connection with Crime No. 378/95 on 26.11.1995 for offence punishable under 304 – B of the I.P.C. on 23.8.96, considering the delay which was likely to occasion in getting the report in relation to the death note, the applicant was ordered to be released on temporary bail on his furnishing a personal bond in the sum of Rs. 15,000/ – with one surety in the like amount.

       2. Smt. J. Choudhary, learned counsel for the objector submitted that after release of the applicant on temporary bail he and his brother to intimidate and threaten the objector and the family have thrown acid on the objector which had caused severe injuries on the back of the objector. According to her objector Ghanshyam was coming from Vandhana Talkies with his brother Balram Chouksey, the applicant and his brother Arvind came on a motor – cycle and Arvind threw acid on him. After throwing acid Arvind and Shivshankar Chouksey fled away from the spot. Considering the seriousness of the allegations I had called for the case diary of Crime No. 363/96 registered at police station Madan Mahal under section 307/34 of the I.P.C. on the report of objector Ghanshyam Chouksey. According to first information report, the incident took place at about 12.30 midnight and the report was lodged at about 12.50 a.m. I had also called for the officers who had investigated into this subsequent offence. According to the first information report lodged in this acid case, the incident took place at about 12.30 midnight. The case diary reveals that immediately after the report at about 12.50 wireless messages were sent to the police station which situated on the way to Seoni. At about 2.30 in the night, the officers of police station Seoni reached the house of the accused and found him in his house. According to police investigation, the accused was seen in his house within two hours of the alleged incident. It is not in dispute before me that the distance between Jabalpur and Seoni is around 145/150 Kms and the road between Jabalpur and Seoni is not in good shape. Various statements of the neighbours of accused were recorded by the police who had clearly stated that the accused was in his house right from evening till the time when the police had come at 2.30 in the night. The case diary also reveals that police had seized an acid bottle and marks of the acid droplets in the house of the complainant. The police report though not very sure but states that the report was in fact manufactured. Without entering into the controversy whether the incident of acid throwing really took place or not, at this stage, it would be safe to rely on the investigation conducted by the police, according to which the accused was seen in his house at 2.30 in the midnight at a distance of 150 Kms. from the scene of occurrence.

       3. According to Shri Kochar the death note was found by the police but unfortunately the same was not supplied to the accused earlier therefore it could not be brought to the notice of this Court, when the earlier bail application was rejected. According to Shri Kochar, the deceased had committed suicide for unknown reasons and the accused cannot be held guilty for. Shri Ahluwalia submits that the document was sent to the hand – writing expert but the prosecution agency could not receive the report from the expert.

       4. It was not disputed before me that the death note in fact was seized from the spot.

       5. Considering the totality of the circumstances and taking into account, the pre trial detention of the applicant and also considering the death note I am of the opinion that the accused deserves to be released on bail. The interim order granted on 23.8.96 is hereby confirmed.

       6. C.C. as per rules to the parties.