Himachal Pradesh High Court
Inder Dev vs State Of Himachal Pradesh on 1 December, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
1
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No.2054 of 2022
.
Date of Decision: December 1, 2022
Inder Dev ...Petitioner.
Versus
State of Himachal Pradesh ..Respondent.
Coram:
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
For the Petitioner: Mr.Sudhir Thakur, Senior Advocate,
alongwith Mr.Karun Negi, Advocate.
For the Respondent: Mr. Hemant Vaid, Additional Advocate
r General.
Vivek Singh Thakur, J (oral)
Petitioner has approached this Court under Section 439 of the Code of Criminal Procedure (for short Cr.P.C.) seeking bail in case FIR No. 239 of 2021, dated 26.8.2021, registered in Police Station Kullu, District Kullu, Himachal Pradesh, under Sections 302, 307, 323, 325, 326, 201, 147, 148, 149, 440, 354, 354-B, 109 and 34 of the Indian Penal Code (for short 'IPC'), Section 25 of Arms Act and Sections 3(1)(r), (s), (w) & 3 (2)(va) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as SC&ST Act).
2. Status Report stands filed. Record was also made available along with CCTV Footage of Café Waters Edge, being relied upon by the prosecution for identification of accused and other persons.
1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 03/12/2022 20:32:15 :::CIS 23. Prosecution case is that on 25.8.2021 at about 7:30 P.M. an information was received in Police Station, Kullu that at near Saeubag at Chhururu, some mishap had occurred. This .
information was transmitted by Police Station staff to QRT team and to SI Kushal Kumar, the then SHO, who was on patrolling. SI Kushal Kumar, out of his Patrolling Party, deputed ASI Vij Ram and Constable Om Parkash to reach Regional Hospital, Kullu to handle the situation on arrival of injured and alongwith remaining team of Patrolling Party he rushed to spot. On reaching near Café Water Edge (hereinafter referred as Café) at Chhururu, he met Constables of QRT Team of Kullu Police who were controlling the traffic on the spot, managing preservation of the spot and were waiting for Ambulance to shift injured persons from spot.
Son of victim Yuma Devi and other onlookers were also present on the spot. Paras Ram was lying in katcha portion of road on side of road. He was bleeding badly and at some distance from him, in the middle of the road, his broken vehicle was there. On left front seat thereof injured Yuma Devi was crying due to pains.
SI Kushal Kumar instead of waiting for Ambulance directed QRT Team and son of victim to shift injured to the Hospital in his Police vehicle. Thereafter on reaching the Hospital, treatment of injured was started in emergency. During treatment, statement of Yuma Devi was recorded under Section 154 Cr.P.C. by ASI Vij Ram, on the basis of which FIR was registered under Sections 307, 320, 147, 148, 149 IPC, Section 25 of Arms Act and Section 3 of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act.
::: Downloaded on - 03/12/2022 20:32:15 :::CIS 34. Keeping in view serious condition of victims during night, they were referred to Medical College and Hospital, Nerchowk, Mandi. As provisions of SC&ST Act were attracted, .
therefore, in compliance of communication dated 26.8.2021 issued by Superintendent of Police, Kullu, investigation was transferred to Additional Superintendent of Police, Kullu.
5. As per medical record, following major injuries were found on the person of victim Yuma Devi and Paras Ram.
(a) Yuma Devi.
"1. Open wound left leg-blunt injury.
2. Lacerated wound left leg-blunt injury.
3. Swelling both arms-blunt injury.
4. Swelling distal phalange both arms-blunt injury.
5. Open wound left thumb blunt injury.
6. Fracture both bone forearm-grievous nature.
7. Fracture left leg-grievous nature."
(b) Paras Ram:
"(1) Lacerated Wound (3x2 CM) over frontal region.
(2) Bruise (variable size) over right and left shoulder 10x3, 2x1 cm, 5x3 cm.
(3) Bruise (10x3 cm) over left shoulder. (4) Open wound over right forearm (3x1 cm, 3x1 cm, 4x2 cm).
(5) Open wound over left forearm. (6) Bruise (6x4 cm) over left thigh 9 cm from ASIS. (7) Bruise (5x3 cm over Right thigh 10 cm from ASIS. (8) Open wound (3x1, 4x2, 3x1.5 cm, 4x1) over left leg. (9) Open wound (4x1) cm over right leg. (10) Lacerated wound (6x3 cm) over left arm. (11) Bruise (5x3 cm) over left knee. (12) Bruise (variable size).
(13) fracture hank both bone forearm & leg both side."::: Downloaded on - 03/12/2022 20:32:15 :::CIS 4
6. During investigation statement of Yuma Devi was also recorded on 2.9.2021 in Medical College and Hospital, Nerchowk, wherein she had given detailed statement about .
dispute and incident with explanation that at the time of recording of previous statement immediately after the attack when she was in Kullu Hospital, she was grievously injured and was under shock and influence of various kinds of drugs/injections administered to her by the doctors, and was in semi-conscious state, and in between her statement was being recorded by the Police and in such state of mind and body she could not narrate the facts of incident properly and completely.
7. Statement of victim has also been recorded under section 164 Cr.P.C. before Judicial Magistrate First Class, Kullu on 9.11.2021. As per prosecution case, as also narrated in the statement of victim Yuma Devi dispute had arisen between complainant party and assailants party with respect to sale and purchase of land and a threat was extended by Khimi Ram alias Kewlu to the injured party, whereupon on 23.8.2021 injured party went to Police Station, Kullu, but their FIR was not registered and they were called on next morning and on 24.8.2021, when they went to Police Station, Kullu, Khimi Ram alias Kewlu was also found summoned there, but he did not come to I.O., but kept on sitting in his vehicle behind the Police Station and when by noon Yuma Devi felt hungry, she alongwith her husband went outside the Police Station to have some eatables. When they reached near District Court Kullu, Khimi Ram came behind them in his vehicle and stopped his Car near ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 5 the couple and took out a danda from Dickey of his Car, whereas his driver Vijay took out a rod and both of them tried to beat her husband and at that time Sidhu was also accompanying the .
assailants. Sidhu held her husband, whereas Khimi Ram went on beating him. The moment Vijay tried to give blow to her husband, Yuma Devi rushed and snatched the rod from him and asked to leave her husband, with warning that otherwise she will also hit. By that time, two Policemen also came, one of them caught her husband alongwith Sidhu and Khimi Ram kept on beating her husband. Yuma Devi hit the vehicle of Khimi Ram with rod and cried loudly asking to leave her husband with threat that otherwise she would damage the vehicle. In the meanwhile, Vijay came and snatched the rod from her and slapped her and thereafter Khimi Ram, Policemen and Vijay beat her husband.
With fist blow of Khimi Ram, her front tooth was dislocated.
Thereafter Police came and scuffle was ended and they went home.
8. On 25.8.2021, they were again called in the Police Station at 10:00 A.M., wherefrom they were sent for medical examination and thereafter they returned back to Police Station, where in front of Additional S.P., Khimi Ram and injured party explained their respective versions. Despite advice of Additional S.P., Khimi Ram did not agree to resolve the dispute and they left the Police Station. Thereafter husband of Yuma Devi received a telephonic call from Raj Kumar, who was with Chander Kiran alias Gaurav, Sidhu, one Advocate and brother-in-law of Khimi Ram for the whole day. Raj Kumar had suggested to resolve the dispute ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 6 by sitting together, but husband of victim had replied that Khimi Ram did not pay heed to the advice of Additional S.P., therefore, there is least possibility of compromise and had stated that .
tomorrow they shall meet in Police Station. At 6:00 P.M., Gaurav again called them telephonically and said that incident, which had taken place was not a good thing and asked to resolve the matter by sitting together. By that time, they reached near Water Edge Café, but movement of their vehicle was blocked by parking a Scorpio in the middle of the road and Khimi Ram alias Kewlu, Sidhu, Vijay, brother-in-law of Khimi (Akhil) and other persons came from front side and some persons came from back side and hit their vehicle with stones and when they stopped the vehicle, assailants attacked the couple and husband of complainant was taken to back side of the vehicle and was beaten badly by breaking his foot and causing other injuries and she was also beaten on the seat of vehicle. Assailants tried to pull her out, but she held the liver of gear with her leg, as such they could not pull her out. They torn her clothes and molested her, apart from breaking her arms and leg. She has given details of role of accused persons in her statement recorded under Section 161 Cr.P.C. and statement recorded on oath before Judicial Magistrate Fist Class.
9. As per prosecution case, after having CCTV Footage of Café, it has been found that assailants were present in café since about quarter to 4:00 P.M. on 25.8.2021 and they were waiting for victims and the moment victims reached there, they stopped their vehicle and attacked them. In CCTV Footage one ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 7 Ritik was also found present, who has been interrogated intensively and in his statement he has also stated that Khimi Ram, Vijay, Sidhu and Akhil and some other persons unknown to .
him were present in Café and were discussing about some matter at a side and they were trying to hide something from him. He has also witnessed the incident and had stated that Akhil was also involved in the attack.
10. Learned counsel for the petitioner has submitted that petitioner was arrested on 14.06.2021 and since then he is in judicial custody whereas he has been arrayed as an accused in present case without any incriminating evidence or material against him and he has not been named by any witness, including complainant Yuma Devi, as assailant in the incident.
Further that, though he has been noticed as present in the Café in CCTV footage, but he was not sitting with main accused Khimi Ram and others who had conspired and planned to attack deceased Paras Ram and his wife complainant Yuma Devi, but he was sitting inside the Café and he was not among the assailants, but had gone outside the Café out of curiosity like other passersby of the Café and not even a single witness has named him as an accused or a person involved in attacking the victims and, therefore, going to Café alongwith three other persons and walking hurriedly towards the spot of incident cannot be treated sufficient evidence to implicate the petitioner for commission of offence under Section 302 IPC. Further that, petitioner has not been found alongwith main accused persons, who have been named by the witnesses or have been noticed in the CCTV ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 8 footage actively participating in the incident and, therefore, he is entitled for bail.
11. Learned counsel for the petitioner has submitted that .
clothes of petitioner Inder Dev, alleged to have been worn by him on the day of incident, were sent to RFSL for examination and as per report of RFSFL, no blood was detected on his clothes which substantiates that petitioner was not accompanying attacking party.
12. It has further been submitted by learned counsel for the petitioner that 37 years old petitioner is a married person having two minor children and old ailing bedridden mother because his six brothers are living separately and are not looking after his family and mother, and petitioner is sole bread earner for all of them and, therefore, petitioner, who has been implicated falsely despite being innocent and not connected in commission of offence in any manner, is entitled for bail.
13. Petitioner had also approached Special Judge, Kullu, H.P., by filing Bail Application No.129 of 2022 for enlarging him on bail. The said application was dismissed by Special Judge, Kullu, vide order dated 26.07.2022.
14. Learned Additional Advocate General has submitted that petitioner Inder Dev, in CCTV footage, has been noticed coming on the spot on 25.08.2021 at 3.50.51 p.m., [(as per Camera time which was lacking behind 22 minutes 32 seconds from Indian Standard Time (IST)], alongwith three other accused persons namely Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh and he has been noticed entering in Café ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 9 after one minute, and thereafter till occurrence of the incident he was present in the Café alongwith other accused persons and was sitting in a Shed located below the lawn of the Café. At .
6.40.28 p.m. (time according to CCTV), all accused persons came out from the gate on signal of main accused Khimi Ram and were attacking victim and at 6.43.06 p.m. petitioner was noticed running towards spot of incident from the out gate. He has been identified in CCTV footage by independent witnesses and Regional Forensic Science Laboratory (RFSL) Dharamshala has also reported that petitioner was there in CCTV footage. As per Tower location of mobile of petitioner Inder Dev, he was found present on the spot of occurrence.
15. Learned Additional Advocate General has submitted that when on the call of Khimi Ram all assailants rushed outside the Café to attack victim, petitioner is clearly visible rushing outside the Café alongwith others, including Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh.
16. Learned Additional Advocate General has submitted that Taxi driver Hem Raj alias Anku has also substantiated involvement of petitioner in the offence by stating that on 25.08.2022 Chaman Singh alias Shyama, Kamal Singh alias Tiger alongwith two other persons, not known to him, were dropped by him by his Taxi at Café Water Edge. Learned Additional Advocate General has further submitted that during 24.08.2022 and 25.08.2022 petitioner Inder Dev and Room Singh had conversation on mobile for ten times.
::: Downloaded on - 03/12/2022 20:32:15 :::CIS 1017. It has further been submitted by learned Additional Advocate General that plea taken on behalf of the petitioner, that he was not among the main accused involved in commission .
of offence, is not correct as Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh have been named by eye witness Ritik as persons hitting the car with sticks and beating the victims. Further that, eye witness Rajan Sharma has also named Chaman Singh alias Shyama, Kamal Singh alias Tiger as active participants in conspiracy and attacking the victims.
Therefore, it has been submitted that absence of name of the petitioner in the statements and also absence of blood on his clothes cannot be made basis to claim that petitioner was not involved in commission of offence in furtherance of common intention of all accused persons. As his presence is established through CCTV footage and he has been noticed running towards place of incident alongwith other co-accused with whom he had come to the Café.
18. Learned Additional Advocate General has further submitted that petitioner is an accused in a heinous crime under Section 302 IPC, wherein cold blooded murder has been committed after planning it. It is not a case where a person had expired in a scuffle or on account of an incident taken place for sudden provocation. In this case, it appears that victims were traced, trapped and beaten badly and, injuries are sufficient to draw conclusion that intention of assailants was clear.
19. Taking into consideration submissions of learned counsel for the petitioner as well as learned Additional Advocate ::: Downloaded on - 03/12/2022 20:32:15 :::CIS 11 General and also material on record including statements of victim, MLCs of Victim, nature of injuries received by victims, possibility of mental state of Yuma Devi at the time of recording .
her statement under Section 154 Cr.P.C. and also statement of Ritik, Rajan Sharma and Ravinder Negi and conclusion of investigation but without commenting upon merits of the case, however, taking into consideration parameters and factors required to be taken into consideration at the time of considering bail application, I find that it is not a case where no prima facie case at all is made out against the petitioner. Therefore, I do not find it a fit case for enlarging the petitioner on bail at this stage. Accordingly, petition is dismissed.
(Vivek Singh Thakur), Judge.
December 1, 2022 (Purohit) ::: Downloaded on - 03/12/2022 20:32:15 :::CIS