ROSHAN LAL Vs. STATE OF H P

JUDGEMENT

(1.) Previously this Court had, upon Cr.M.P(M) No. 1028 of 2015, hence ordered for its being dismissed, as withdrawn. However, subsequently the petitioner has reinstituted, the instant bail application before this Court. The changed circumstances contended, by the learned counsel for the petitioner, for hence rendering the petition being nowat maintainable, is, comprised in the testifications' of the prosecution witnesses, being, thereafter recorded, with unanimous echoings borne therein, of a scuffle occurring inter-se the deceased, and, the accused, in course whereof, the accused delivered fist blows, upon, the stomach of the deceased. The learned counsel for the petitioner has contended with much vigor, that, with the post mortem report, not, pronouncing the factum of existence of any external injury, on, the stomach of the deceased, and, with the prosecution witnesses' testifying, of the deceased, at the relevant time, purportedly being in an inebriated condition, (a) therefore, the demise of the deceased being not perse attributable to the fist blow delivered by the accused, upon, the deceaseds' stomach, rather it being attributable to a reason other than the aforesaid striking of the fist blow, on, the deceaseds' stomach.

(2.) Be that as it may, the learned counsel for the petitioner has contended with vigor, by placing reliance upon the testifications, of the prosecution witnesses, wherein they echo, of there occurring a scuffle inter-se the accused, and, the deceased, in course whereof, the accused delivered a fist blow, upon, the deceaseds' stomach, (a) therefrom, he proceeded to make an espousal, rested, upon exception 4 to Section 300 of Indian Penal Code, provisions whereof, are extracted hereinafter, qua with the accused purportedly striking fist blows, upon, the deceaseds' stomach, and, striking thereof occurring in a sudden fight besides in the heat of passion, (b) thereupon prima-facie, at this stage, within the ambit of Section 302 of IPC, no offence being made out against the accused rather an offence within exception 4 vis-'-vis Section 300 of Indian Penal Code rather being constituted, wherefrom, he further contends that indulgence of bail being granted to the bail applicant.

(3.) However, prima-facie at this stage, even if assumingly the espousal of the learned counsel for the petitioner, is, rested upon the testifications', of, the prosecution witnesses, holding echoings qua eruption of a sudden scuffle inter-se the accused, and, the deceased, and, also bears out the further ingredients, of, the apposite exception 4 to Section 300 aforesaid, (a) yet the further ingredients thereof, of, the accused, during the, course of the scuffle, not taking undue advantage or acting in a cruel or unusual manner, is, prima-facie repelled, by the viscera of the deceased containing alcohol, (b) wherefrom it is rather befitting, to, conclude of both being not equally empowered rather prima-facie the bail petitioner being more empowered besides possessing more physical strength vis-'-vis the inebriated thereat deceased, (c) wherefrom it is also befitting to conclude of hence primafacie, the accused rather taking undue advantage of the inebriated condition, of the deceased. Consequently, at this stage the learned counsel for the petitioner cannot rear any espousal qua attraction of exception 4 to Section 300 IPC vis-'-vis the accused.