Himachal Pradesh High Court
Govind Kumar vs State Of Hp on 24 May, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA CRMPM No. 870 of 2023 Date of Decision : 24.5.2023 Govind Kumar ....Petitioner.
Versus .
State of HP ....Respondent.
Coram
THE HON'BLE MR. JUSTICE SANDEEP SHARMA, JUDGE Whether approved for reporting?
For the petitioner : Mr. R.L. Sood, Sr. Advocate, with Mr. Arjun Lall, Advocate.
For the respondents : Mr. Rajan Kahol, Mr. Vishal Panwar Mr. B.C. Verma, Additional Advocates r General with Mr. Rahul Thakur, Mr. Ravi Chauhan and Ms. Avni Kochhar, Deputy Advocates General.
ASI-Raj Kumar, Police Station, Sadar Kullu, is present in person.
SANDEEP SHARMA, JUDGE (ORAL) By way of present bail petition filed under Section 439 of Cr.P.C., prayer has been made on behalf of the bail petitioner, namely, Govind Kumar, who is behind the bars since 30.06.2021, for grant of regular bail in FIR No. 152 of 2021 dated 29.06.2021, under Section 302 IPC registered at Police Station Kullu, District Kullu, Himachal Pradesh.
2. Respondent-State has filed status report and Investigating Officer has come present with record. Record perused and returned. Close scrutiny of the status report/record reveals that on ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 2 29.06.2021, complainant, namely, Keshav Ram S/o Shri Jai Chand lodged a complaint at Police Station Sadar, District Kullu alleging therein that his father was in the business of sale and purchase of .
cattle and he had also purchased mares for carrying construction material. He alleged that his father was living in kiosk (khokha/dhara) situate on the land of Summi Devi at village Babeli, District Kullu, H.P. He also disclosed that person, namely, Anant Kumar was engaged by his father for grazing sheeps. That on 23.06.2021, he came to know that his father has passed away in the kiosk (khokha/dhara) situate on the land of Summi Devi. He alleged that since his father had illicit relationship with Summi Devi, he has suspicion that he has been killed by accused Govind Kumar S/o Summi Devi and as such appropriate action in accordance with law be taken against him. In the aforesaid background, FIR No. 152 of 2021, dated 29.06.2021 came to be lodged against the accused. Since, investigation in the case is complete and nothing remains to be adjudicated in the present proceedings, petitioner has approached this Court for grant of regular bail.
3. While fairly acknowleding the factum with regard to completion of investigation, learned Additional Advocate General submits that though nothing remains to be recovered from the bail petitioner, but keeping in view the gravity of offence alleged to have been committed by the bail petitioner, he does not deserve any leniency and his prayer for grant of bail, deserves outright rejection.
::: Downloaded on - 26/05/2023 20:30:59 :::CIS 3He further states that there is overwhelming evidence available on record suggestive of the fact that since bail petitioner, who is son of Summi Devi had seen deceased with his mother, Smt. Summi Devi, .
in compromising position, he killed deceased Jai Chand. He further contends that though there is no direct evidence to connect the bail petitioner with the offence allegedly committed under Section 302 of IPC, but the statements of Summi Devi given to the Police at the time of lodging of FIR and thereafter, to learned Magistrate under Section 164 of Cr.P.C, are sufficient to conclude/infer that bail petitioner gave beatings to the deceased Jai Chand, as a result of which, he received multiple injuries. He further submits that the petitioner confessed during investigation that he after having seen his mother with petitioner in a compromising position, gave beatings to deceased, as a result of which, he fell down from the staircase.
4. Learned counsel for the petitioner, while refuting the aforesaid submission made by learned Additional Advocate General, states that none of the prosecution witnesses has stated anything specific with regard to beatings, if any, given by the petitioner to the deceased. While referring to the statements made by 13 prosecution witnesses during trial, learned counsel for the petitioner contends that there is nothing suggestive of the fact that injuries, if any, were given by bail petitioner to the deceased, rather at the time of alleged incident, petitioner was not at home. He states that ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 4 though Summi Devi mother of present bail petitioner categorically deposed that at the time of alleged incident, her both sons were not present but yet with a view to falsely implicate the petitioner, police .
concocted a false story that bail petitioner, after having received a telephonic call from his friend, came out of his room and gave beatings to the deceased, but such story put-forth by the prosecution is not supported by any cogent and convincing evidence. While making this Court peruse the statement of Summi Devi recorded before trial Court, learned counsel for the petitioner states that though as per aforesaid version, deceased had come to the room of Summi Devi and he had also tried to sexually assault Summi Devi against her wishes, but since she raised hue and cry, other tenants living in the premises reached on the spot. Learned counsel for the petitioner further contends that since there is no direct evidence against the bail petitioner, indicative of the fact that he killed deceased Jai Chand and entire case of prosecution is based on circumstantial evidence coupled with the fact that none of the prosecution witnesses has supported the case of the prosecution, as such, petitioner herein deserves to be enlarged on bail during trial.
5. I have heard learned counsel for the petitioner and learned Additional Advocate General for the respondent-State and also gone through the material available on record.
::: Downloaded on - 26/05/2023 20:30:59 :::CIS 56. This Court finds that though alleged incident happened on 22.06.2021, but complaint on behalf of son of deceased came to be lodged on 29.06.2021. There is no explanation, qua delay in .
lodging the complaint. Since complainant had definite knowledge with regard to illicit relationship of his father with Summi Devi, he could always tell, at the first instance, to the police that since deceased Jai Chand has expired in his kiosk (khokha/dhara) on account of certain injuries on his body, he has apprehension/suspicion that his father has been killed by family members of Summi Devi. Interestingly, Summi Devi, in her initial version given to the police, stated that the moment her son reached on the spot, deceased Jai Chand ran away from the spot and thereafter she bolted the room from inside, however, subsequently, while getting her statement recorded under Section 164 Cr.P.C., she claimed that deceased Jai Chand firstly telephoned her but she did not pick up the phone and thereafter she made a telephone call to the deceased, who after some time reached at the spot and tried to sexually assault her against her wishes.
7. As per story of the prosecution, bail petitioner herein after having seen deceased in the room of his mother gave him beatings, as a result of which, deceased fell from the stairs onto the field. If it is so, it is not understood that how and under what circumstances, body of deceased was found lying in the kiosk ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 6 (khokha/dhara). As per own case of the petitioner person, namely, Jhabe Ram was also present in the kiosk (khokha/dhara) of deceased along with one Nepali, namely, Anant Kumar and they all .
after havig consumed liquor had gone to sleep. Since Anant Kumar was unable to sleep in the kiosk (khokha/dhara) on account of snoring of Jhabe Ram, it was only Jhabe Ram, who was in the kiosk (khokha/dhara) during the intervening night of alleged incident.
Interestingly, police made no efforts to investigate aforesaid Jhabe Ram, especially when it was claimed by prosecution that dead body of deceased Jai Chand was found lying in the kiosk (khokha/dhara).
Leaving everything aside, this Court finds that there is no direct evidence or eye-witness to the alleged incident and the entire case of prosecution is based of circumstantial evidence, especially on the statement of Summi Devi. If the statement of Summi Devi recorded in the trial Court is perused in its entirety, she nowhere supported the case of the prosecution, rather she has categorically stated that at the time of alleged incident, her both sons including the bail petitioner were not present in the house and they had gone for booking of Rafting at Babeli. This Court finds that all the other material prosecution witnesses, who are 13 in number, have not supported the case of the prosecution, rather they alll have stated that they had no occasion to see the incident. There is another glaring aspect of the matter that no attempt, if any, ever came to be ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 7 made by police to investigate two persons, namely, Jhabe Ram and Anant Kumar, who admittedly were present in the kiosk (khokha/dhara) immediately prior to the alleged incident. Since .
aforesaid person along with the deceased Jai Chand consumed liquor, there is every possibility of altercation, if any, inter se between them but that aspect of the matter has not been investigated by the Police.
8. No doubt while considering the prayer made on behalf of the bail petitioner, gravity of offence is a key factor that is to be taken into consideration but that cannot be the only ground to deny the bail. No doubt, offence punishable under Section 302 of IPC is grave offence for which extreme penalty of death has been provided in law, however, mere gravity of offence and the severity of punishment is no ground for rejection of bail. In this regard, reliance is placed upon the judgment passed by this Court in Jeet Ram v.
State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-
"7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 8 persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.
8. In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons .
to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :
"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, r there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
9. In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :
"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."::: Downloaded on - 26/05/2023 20:30:59 :::CIS 9
10. In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 :
(1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured .
was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co- accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured."
"12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account".
9. Though case at hand is to be decided by the court below in the totality of evidence collected on record by the investigating agency, but having taken note of the aforesaid aspect of the matter, there appears to be no reason for this Court to let the bail petitioner incarcerate in jail for an indefinite period. Hon'ble Apex Court as well as this Court have held in catena of cases that one is deemed to be innocent till the time his/her guilt is not proved, in accordance with law and as such, this Court sees no reason to let bail petitioner incarcerate in jail for an indefinite period during trial, especially when he has already suffered for almost two years.
Apprehension expressed by learned Additional Advocate General that in the event of being enlarged on bail, bail petitioner may flee ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 10 from justice or hamper the investigation, can be best met by putting the bail petitioners to stringent conditions.
10. Hon'ble Apex Court in Criminal Appeal No. 227/2018, .
Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual can not be curtailed for indefinite period, especially when his/her guilt is yet to be proved.
It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
11. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
12. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail. Apart from above, Court has to keep in mind nature of ::: Downloaded on - 26/05/2023 20:30:59 :::CIS 11 accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that .
crime.
13. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment influenced.
r to involved, apprehension of repetition of offence and witnesses being
14. In view of above, bail petitioner has carved out a case in his favour, as such, present petition is allowed. Petitioner is ordered to be enlarged on bail, subject to his furnishing bail bonds in the sum of Rs.1,00,000/-, with two local sureties in the like amount, to the satisfaction of the learned trial Court, besides the following conditions:
(a) He shall make himself available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) He shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) He shall not leave the territory of India without the prior permission of the Court.::: Downloaded on - 26/05/2023 20:30:59 :::CIS 12
15. It is clarified that if the petitioner misuses the liberty or violates any of the conditions imposed upon him, the investigating agency shall be free to move this Court for cancellation of the bail.
.
16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this petition alone. The petition stands accordingly disposed of.
A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
(Sandeep Sharma) Judge May 24, 2023.
(Guleria) ::: Downloaded on - 26/05/2023 20:30:59 :::CIS