Himachal Pradesh High Court
Rafat vs State Of H.P on 21 September, 2023
Author: Virender Singh
Bench: Virender Singh
1 IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr. MP(M) No. 2292 of 2023 Reserved on : 14.9.2023 .
Decided on : 21.9.2023 Rafat ...Applicant Versus State of H.P. ...Respondent of _____________________________________________________________ Coram Hon'ble Mr. Justice Virender Singh, Judge Whether approved for reporting? _____________________________________________________________ rt For the Applicant : Mr. Parikshit Rathour, Advocate.
For the Respondent : Mr. H.S. Rawat, Mr. Tejasvi Sharma, Mr. Mohinder Zharaick, Addl. AGs with Ms. Leena Guleria and Ms. Sunaina, Deputy Advocate General, assisted by ASI Ramesh Chand, I.O., Police Station, Kandaghat.
Virender Singh, Judge Applicant- Rafat filed the present application, under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), for releasing her on bail, during the pendency of trial, in case FIR No. 68 of 2021, dated 26.10.2021, registered with Police Station, Kandaghat, District Solan, under Sections 302, 201 read with Section 120-B of the Indian Penal Code (hereinafter referred to as 'the IPC) and Sections ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 2 25(1)(A) and 27(2) of Arms Act,1959.
3. According to her, as per allegations, levelled against her, she had illicit relations with one Sarik .
Khan and she had conspired with him to kill her husband, Bashid Khan.
3. The investigation, in the present case, is of stated to be complete and she has been charged under Section 120-B of the IPC, by the Court on 2.7.2022.
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4. According to her, no useful purpose would be served by keeping her in judicial custody. Eight witnesses are stated to have been examined. It is asserted that conclusion of the trial will take sufficient long time.
5. According to the applicant, she is an innocent person and has falsely been implicated in this case.
She was living happily with her husband Bashid Khan and was blessed with two children.
6. The applicant has tried her luck by moving an application, bearing No. 167 of 2023, before the Court of learned Sessions Judge, Solan, H.P. ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 3 However, her bail application was dismissed, vide order dated 20.7.2023.
7. The applicant, through her counsel, has given .
certain undertakings, for which, she is ready to abide by, in case released on bail.
8. On the basis of above facts, a prayer has been of made to allow the application.
9. When put to notice, the police has filed the rt status report, disclosing therein, that on 26.10.2021, an information was received in the Police Station, upon which, HC Umesh Pal, No. 87 and HHC Jai Singh, No. 487 had gone to the spot in their official vehicle No. HP-14B-6204. When, they reached at the spot, they have partially verified the facts and thereafter, he has informed the then SHO, Police Station, Kandaghat to verify the facts, upon which, the then SHO Brij Lal, alongwith other police officials, reached at the spot.
9.1 Complainant, Hemant Kumar made a statement, under Section 154 of Cr. P.C., disclosing therein that he is the Up-Pradhan of Gram ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 4 Panchayat, Bisha. On 26.10.2021, he was in his house and at about 7:45 a.m., one Mukul Sharma, who is his co-villager, informed him on telephone .
that one Taxi has been found to be parked near the Dhyarighat Temple. On the driver side, one person was found lying unconscious. Said Mukul Sharma of was not sure whether he was dead or alive. On this, Up-Pradhan and Bhupesh Sharma reached on the rt spot and Pradhan Dharam Dutt was informed telephonically about the incident.
9.2 On the spot, one Ertiga Taxi No. HR 38Y-0410 was found parked, facing towards Shimla.
In the said car, on the driver side, one person was found, whose neck was found bent towards left side.
The blood was oozing out from his head. On checking its papers, the vehicle was found to be sold by Sanjay Jain to Bashid Khan, on the Sale & Purchase affidavit. The deceased was found to be Bashid Khan, S/o Shri Rasheed Khan. When, the dead body was taken out from the vehicle, it was found that someone had hit on his head with sharp edged ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 5 weapon 9.3 On the basis of above facts, the Police registered the case, under Section 302 IPC and .
criminal machinery swung into motion. Photography and videography of the spot was done. On the body of vehicle, mobile number 98734-91921 was found of written/printed. On contacting the said number, the same was found pertaining to Bashid Khan, the rt owner of the vehicle.
9.4 It has also transpired that Bashid Khan had gone to Shimla to drop a passenger on 25.10.2021.
The key of the car was found to be thrown at a distance of about 20 feet from the vehicle. Inside the car, number of hair was found to be scattered and on the rear side, four plastic glasses and one water bottle, was found, at a distance of about 80 meters away from the spot, on the left side of the road. One mobile 'Redme' was found in broken condition. The said fact was disclosed by the Site Engineer Ranjit Singh.
9.5 The physical evidence, so found, was ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 6 collected. Relatives of Bashid Khan, namely, Kasim Khan and Abdullah, reached on the spot. They had also identified the deceased Bashid Khan as their .
brother-in-law. His dead body, thereafter, was taken to Regional Hospital, Solan, for post-mortem examination. The cause of death was found to be a of gunshot injury.
9.6 On 30.10.2021, when the IO was moving towards rt spot, then at Dhyarighat, three local persons, namely Neeraj, Gaurav and Rahul, informed them that on the railway track, one golden colour pistol was found. The finger prints expert, ASI Sanjeev Kumar, on checking, found it to be the country made pistol and disclosed that no finger prints were there on it. The said pistol was taken into possession.
9.7 During investigation, CCTV footage of TTR, Parwanoo, dated 25.10.2021 and that of Amreek, Sukhdev Dhaba, Muruthal, dated 2.11.2021 was taken into possession. On perusal of the CDR of mobile number of deceased Bashid Khan, it was ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 7 found that on 25.10.2021, one call was received on his number from mobile number 85277-43272.
When, the holder of the said mobile number was .
associated in the investigation, it was found that his name was Afzal Ali, who was an Auto driver in Delhi.
According to him, on 25.10.2021, when, he was of present at Saket Metro Station and was waiting for the passengers, at about 3:45 p.m., a young man, rt aged about 22-23 years came to him and asked him that he wants to make a call to a Taxi owner, as, his phone was not connecting. He has saved the number of the Taxi driver as 'My Friend'.
9.8 According to his further revelations, the said person contacted the driver of Taxi No. HR-0410 and requested him that one boy wants to hire his taxi to go to Shimla. When, the CCTV footage of Amreek, Sukhdev Dhaba was shown to him, although, he had identified the said boy, but, he could not disclose his address. The CCTV footage of Saket Metro Station was also obtained.
9.9 During investigation, it was found that ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 8 the wife of the applicant was having two sim cards, issued by Vodafone, bearing numbers 87430-44318 and 96541-17196. When, the requisite information .
was obtained, both the numbers were found to be issued in the name of applicant. When, the CDR of those numbers were analyzed, then, it was found of that these numbers were in contact with mobile No. 87919-17658 and 72530-17658.
9.10 rt On 25.10.2021, it was found that the conversation had taken place on these numbers.
During the midnight of 26.10.2021, location of mobile No. 72530-17658, was found to be at village Jhajha, Tehsil Kandaghat, District Solan.
9.11 On 26.10.2021, from mobile number 87919-17658, three calls were made to 78302- 41366. When, the requisite documents were obtained from the service provider, then, it was found that mobile number 78302-41366 was issued in the name of Kaif Ayaz, S/o Iliyaz. When Kaif Ayaz was associated in the investigation, it was found that mobile number 78302-41366 was being used by his ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 9 nephew Asadullah. While purchasing the sim card, Asadullah has given his ID proof. When the CCTV footage was shown to him on the laptop, he has .
identified the person as his elder nephew Sarik Khan.
9.12 When, the CDR of mobile numbers 87919-17658 and 72530-17658 was obtained from of the service provider, then, the same were found to be issued in the name of Sarik Khan. He was associated rt in the investigation, on 14.11.2021.
9.13 During investigation, he has disclosed that he came into contact with Rafat (applicant) and developed intimate relations with her. When, her husband came to know about the said fact, he told her that he will obtain her call details. Rafat disclosed the said fact to Sarik Khan and provided him a sum of Rs.8,000/- to purchase a country made pistol, upon which, he purchased the said weapon on demand of Rs. 4,000/-. Alongwith the said weapon, he had gone to Delhi.
9.14 On 12.10.2021, he handed over the said weapon alongwith cartridges to applicant Rafat. From ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 10 12.10.2022 to 22.10.2022, he remained in the house of applicant Rafat at Sangam Vihar, Delhi.
9.15 On 23.10.21, applicant Rafat, as per .
the status report, apprised him that some guests are coming, as such, she has requested him to stay in a hotel. On 25.10.2021, he took the taxi of Bashid on of the pretext that he wants to go to Shimla. On 26.10.2021, on the way, he requested Bashid Khad rt to stop the car, as he wanted to respond the call of nature. Thereafter, he killed Bashid Khan by firing a bullet upon him. Thereafter, he took a lift to Shimla and stayed in a hotel, near Shimla Bus Stand.
9.16 On the basis of above facts, accused Sarik Khan was arrested on 14.11.2021. During police custody, he has made disclosure statement, under Section 27 of the Indian Evidence Act and got recovered live cartridges and also identified the room, hired by him, in Hotel Rajdoot, Shimla.
9.17 After completion of investigation, the Police filed the charge-sheet and case is stated to be fixed for 23.9.2023 for PWs.
::: Downloaded on - 21/09/2023 20:35:49 :::CIS 119.18 As per supplementary status report, filed on 14.9.2023, it is disclosed that out of total witnesses, 20 witnesses have been examined and 35 .
witnesses are yet to be examined.
10. On the basis of above facts, a prayer has been made to dismiss the application.
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11. The applicant has sought the relief of bail, in the present case, mainly on the ground that rt being lady, she is entitled for bail, as per the provisions of Section 437 of Cr. P.C.
12. To buttress his contention, learned counsel appearing for the applicant has relied upon the decisions of Coordinate Bench of this Court, in case titled as, 'Nirmala Devi versus State of H.P.', reported in 2016(2) HLR 879 and in case titled as, 'Sansar Chand versus State of H.P.', reported in 2023 Supreme today HP (373).
13. As per the stand, as taken by the Police, in the status report, the applicant has allegedly conspired with her co-accused and in pursuance of said conspiracy, co-accused Rasik Khan had ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 12 allegedly killed her husband.
14. The applicant has been named as accused in the serious offence, which is, no doubt, .
based upon the circumstantial evidence, but, the circumstantial evidence is as good, as direct evidence.
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15. While deciding the question of bail, a delicate balance between the individual liberty and the larger rt interest of the society, has to be maintained. The provisions of Section 437 of the Cr.
P.C., are not the absolute rule, as question of bail, is to be decided according to the peculiar facts and circumstances of the case.
16. The applicant, as per the status report, is the main conspirator in the commission of heinous crime and in case, she is ordered to be released on bail, it will give a wrong signal to the society that after committing such a heinous crime, the applicant is moving freely, in the society.
17. So far as the arguments, as addressed by the learned counsel for the applicant that chances ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 13 of conclusion of trial, in near future, are not so bright, as such, keeping her in judicial custody is nothing, but violation of her fundamental rights, is .
concerned, it can be said, considering the pace of the trial, that the trial against the applicant, is not delayed, as 20 witnesses, as per the status report, of have already been examined and 35 witnesses are yet to be examined.
18. rt The applicant is not entitled for the relief, as prayed for, even on the basis of special provision of Section 437 Cr. P.C., as the trial is at the crucial stage and material witnesses are yet to be examined.
19. So far as the case law, as relied upon by the learned counsel for the applicant is concerned, the same are not applicable to the facts and circumstances of the present case, as, according to the status report, the applicant is stated to be the master mind of the crime.
20. In such situation, this Court is of the view that applicant is not able to make out a case for ::: Downloaded on - 21/09/2023 20:35:49 :::CIS 14 bail, in her favour.
21. Accordingly, the bail application is dismissed.
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22. Any of the observations, made hereinabove, shall not be taken as an expression of opinion, on the merits of the case, as these of observations, are confined, only, to the disposal of the present bail application.
rt (Virender Singh)
Judge
September 21 , 2023
Kalpana
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