Himachal Pradesh High Court
Between vs Central Bureau Of on 30 September, 2022
Author: Sandeep Sharma
Bench: Sandeep Sharma
THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 30TH DAY OF SEPTEMBER 2022 BEFORE HON'BLE MR. JUSTICE SANDEEP SHARMA .
CRIMINAL MISCELLANEOUS PETITION (MAIN) NOS. 1967, 2136, 2138- 2141
1. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 1967 OF 2022 BETWEEN ABHINAY GARG S/O DHARAMPAL, R/O VPO BARSI, TEHSIL BALH, DISTRICT MANDI, H.P. AGED ABOUT 37 YEARS PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)
2. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 2136 OF 2022 BETWEEN RAHIL GARG SON OF SHRI SURINDER KUMAR RESIDENT OF HOUSE NO. 103/12, RAM NAGAR, MANDI, TEHISL SADAR, DISTT. MANDI, H.P.' AGED 21 YEARS PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 2 WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)
3. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 2138 OF 2022 BETWEEN SURENDER KUMAR .
SON OF SHRI NARAYAN DASS RESIDENT OF HOUSE NO. 103/12 RAM NAGAR, MANDI, DISTT. MANDI, H.P. AGED 59 YEARS PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)
4. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 2139 OF 2022 BETWEEN YASH PAL SON OF SHRI NARAYAN DASS, RESIDENT OF HOUSE NO. 103/12 RAM NAGAR, MANDI, DISTT. MANDI, H.P. AGED 58 YEARS PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)
5. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 2140 OF 2022 BETWEEN ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 3 SATISH KUMAR SON OF SHRI KARAM CHAND, RESIDENT OF VILLAGE & POST OFFICE, KOT, TEHSIL TAUNI DEVI, DISTT. HAMIRPUR, H.P. AGED 37 YEARS .
PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL)
6. CRIMINAL MISCELLANEOUS PETITION (MAIN) NO. 2141 OF 2022 BETWEEN SAHIL GARG, SON OF SHRI SURINDER KUMAR RESIDENT OF HOUSE NO. 103/12 RAM NAGAR, MANDI, DISTT. MANDI, H.P. AGED 22 YEARS PETITIONER (BY MR. AJAY KOCHHAR, MS. AVNI KOCHHAR & MR. BHAIRAV GUPTA, ADVOCATES) AND STATE OF HIMACHAL PRADESH RESPONDENT (BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATES GENERAL WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL) INVESTIGATING OFFICER PRESENT.
Whether approved for reporting: Yes.
These petitions coming on for orders this day, the court passed the following:
OR D ER ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 4 Since all the petitions arise out of same FIR, they were taken up together for hearing and are being disposed of vide this common order.
2. Bail petitioners namely Abhinay Garg, Rahil Garg, Surender Kumar, .
Yash Pal, Satish Kumar and Sahil Garg have approached this court in the instant proceedings filed under S 439 CrPC, praying therein for grant of regular bail in FIR No. 71 dated 17.3.2022, registered at Police Station Sadar, Mandi, under Ss.302, 147, 148 and 149 IPC. Respondent-State has filed status report and Investigating Officer has come present with record.
3. Perusal of status report/record reveals that on 17.3.2022 at about 5.00 pm, police after having received information that one person Raj Kumar alias Raju has drowned in Beas river, reached the spot and found that the deceased, with a view to save his life, jumped into Beas river. Complainant Surender, who is an eye witness, got recorded his statement under S.154 CPC that on 17.3.2022 at 11.00 am he had gone to Seri Mach for celebrating Holi and at about 3.30 pm, when he reached back home, he saw Raj Kmar running on bank of Beas river. He alleged that 9-10 people including 4-5 ladies, were chasing Raj Kumar carrying stones in their hands.
Complainant alleged that deceased Raj Kumar jumped into river and sat on boulder on other side of the river. However, 4-5 people after crossing bridge reached near Raj Kumar alias Raju from other side and gave blow of Danda on his head, due to which Raj Kumar alias Raju fell in river. Complainant alleged that though deceased Raj Kumar raised his head and arms twice or thrice in water but ultimately he drowned. In the aforesaid background, FIR, as detailed herein above, came to be lodged against persons namely Dharampal, Surinder Kumar, Sahil Garg, Yash Pal, Rahil Garg, Abhinay Garg, ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 5 Satish Kumar, Damyanti and Smt. Kamlesh Kumari. Accused Damyanti and Kamlesh Kumari stand enlarged on bail vide order dated 3.8.2022 passed by this court in CrMP(M) Nos. 871 and 1133 of 2022, whereas, all the remaining accused as named above are behind bars. Since Challan stands filed in the .
competent court of law and nothing remains to be recovered from bail petitioners, they have approached this court in the instant proceedings, for grant of bail.
4. Mr. Narinder Guleria, learned Additional Advocate General, while fairly acknowledging the factum with regard to filing of Challan the competent court of law, contends that though nothing remains to be recovered from the bail petitioners, but keeping in view gravity of offence alleged to have been committed by the bail petitioners, they do not deserve leniency and their prayer for bail deserves outright rejection. While making this court peruse the record, learned Additional Advocate General submits that there is overwhelming evidence to demonstrate that all the petitioners made deceased Raj Kumar alias Raju jump into river Beas to save his life. However, above named deceased died after being drowned and as such, bail petitioners have been rightly booked for commission of offences punishable under Ss. 302, 147, 148 and 149 IPC. Learned Additional Advocate General further submits that there is an eye witness to the effect that all the bail petitioners were hurling stones at the deceased Raj Kumar alias Raju, who with a view to save his life jumped into Beas river and thereafter sat on boulder on the other side of the river, but yet some of the accused came from opposite side and gave blow of Danda on his head, as a consequence of which, deceased drowned.
Lastly, Mr. Guleria submits that since all the petitioners have indulged in heinous crime, it may not be interest of justice to enlarge them on bail, ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 6 because, in the event of being enlarged on bail, they may flee from justice or tamper with prosecution evidence.
5. Having heard learned counsel for the parties and perused material .
available on record this court finds that prior to the alleged incident, some altercation took place inter se bail petitioner Abhinay Garg and deceased Raj Kumar alias Raju, who allegedly gave blow of pressure pipe on the head of Abhinay Garg. Family members of Abhinay Garg, who are bail petitioners herein, with a view to take revenge, chased Raj Kumar alias Raju, who after having seen persons coming after him, jumped into river. Though deceased Raju after having crossed Beas river, sat on boulder on the other side of the river, but one of accused Dharampal, with other accused, reached other side of the river and gave blow of Danda on the head of deceased Raj Kumar alias Raju, as a consequence of which, he fell down in the river and ultimately drowned.
6. In nutshell, case of prosecution against the bail petitioners is that they compelled deceased Raj Kumar alias Raju to jump in river Beas, because at the relevant time, all the accused named in the FIR, were throwing stones at him. However, having seen CCTV and video recording made available to this court by Mr. Bhairav Gupta, learned counsel for the petitioners, this court finds that though some of the persons can be seen throwing stones at the deceased Raj Kumar alias Raju, while he had jumped in the river, but once he had crossed the river and sat on boulder on the other side, no stones were thrown by the bail petitioners, rather at that time, one of the co-accused Dharampal, after having crossed bridge came from opposite side alongwith two persons and gave blow of Danda on the head of deceased, as a consequence of which, he fell in river Beas and ultimately drowned. No doubt, ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 7 in CCTV and video footages, persons can be seen throwing stones at the deceased but the fact remains that the deceased Raj Kumar alias Raju died after being hit on his head by accused Dharampal with a Danda, which fact stands substantiated with the report of post portem, wherein cause of death of .
deceased has been mentioned as sub dural hemorrhage on parietal region.
There is no mention, if any, with regard to external injury, if any, caused on the person of deceased, after his being hit by stones, if any, thrown by the bail petitioners.
7. As per post-mortem report, cause of death of the deceased is drowning, which only happened after his having fallen in the river on account of blow of Danda given on his head by one of accused Dharampal. It is not in dispute that while stones were being thrown by the bail petitioners, deceased Raj Kumar alias Raju had jumped into river and crossed the same successfully. After having crossed Beas river, the deceased was sitting on boulder, on the other side of river, which can be seen in the video/CCTV footage. It is only after his being hit on head by Dharampal with a Danda, that he fell in river and ultimately drowned.
8. It has come in the investigation that on the date of incident, Holi fair was being organized at Seri Mach and entire family of one of bail petitioner Abhinay Garg, who was hit by Raj KUMAR alias Raju, was present in Holi fair, but unfortunately thereafter things took an ugly turn and family of Abhinay Garg, who was given blow with pressure pipe on his head by the deceased, chased the deceased Raj Kumar alias Raju and he, with a view to save his life, jumped into river Beas.
::: Downloaded on - 30/09/2022 20:03:57 :::CIS 89. No doubt, material available on record reveals that the bail petitioners were throwing stones at the deceased but whether they had a common intention to kill the deceased, is a question to be decided in trial, in the totality of evidence led on record by Investigating Agency especially when there is .
overwhelming evidence available on record, suggestive of the fact that the deceased after crossing Beas river sat on boulder on opposite side and then fell in river after being hit on his head by one of accused Dharampal. Had accused Dharampal not given blow of Danda on the head of deceased, deceased would not have fallen in the river and drowned. It is only due to blow of Danda given by Dharampal, that he fell in river Beas and drowned.
10. No doubt, bail petitioners are accused of a heinous crime of murder, but, whether their mere presence on the spot alongwith main accused, would also make them liable for commission of offence, if any, under S.302 IPC, is a question to be determined in totality of evidence led on record by Investigating Agency. While deciding question of grant /refusal of bail, court is to keep in mind gravity of offence alleged to have been committed by accused named in the FIR but by now it is settled that gravity of offence would not be the sole criteria to decide this question, rather other competing factors viz., prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced, are to be seen.
11. In the case at hand, the only role attributed to the bail petitioners is that they were pelting stones at the deceased, as a consequence of which, he was compelled to jump into river Beas, however, as has been noticed herein above, deceased after having seen people coming after him, jumped into river and crossed the same successfully, meaning thereby that the deceased did ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 9 not drown on account of pelting of stones by the bail petitioners, rather, he successfully crossed the river Beas but thereafter, fell from boulder, after being hit on his head by accused Dharampal. Mere pelting of stones by the bail petitioners may not necessarily lead to the conclusion that they had .
common object of killing deceased as such, applicability of S.149 IPC in the facts of the case at hand, is a debatable question, which shall be definitely decided in the totality of evidence led on record by Investigating Agency by learned trial Court.
12. Reliance is placed upon Judgment rendered by this Court in Jeet Ram v. State of H.P., reported in Latest HJL 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 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 ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 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, 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."
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 ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 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."
.
13. Since it is admitted case of the prosecution that the deceased fell after having been given blow by Danda, it would be too premature at this stage to conclude complicity of the bail petitioners in the alleged offence, who were incidentally present on the spot on account of Holi fair.
14. Though, the case at hand is to be decided by learned Court below in the totality of the evidence collected on record by prosecution, but keeping in view the aforesaid glaring aspects of the matter, this court sees no reason to let the bail petitioners incarcerate in jail, for an indefinite period during trial, especially, when Challan stands filed and nothing remains to be recovered from them. It appears that the entire family of Abhinay Garg, who was allegedly given beatings by deceased Raj Kumar alias Raju, has been put behind the bars.
15. Hon'ble Apex Court and this Court in a catena of cases have repeatedly held that one is deemed to be innocent, till the time, he/she is proved guilty in accordance with law. Apprehension expressed by laag..
that in the event of bail petitioners being enlarged on bail, they may not only flee from justice but may also harm the victim-prosecutrix, can be best met by putting the bail petitioners to stringent conditions.
16. 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 ::: Downloaded on - 30/09/2022 20:03:57 :::CIS 12 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.
.
17. 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 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.
18. 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 involved, apprehension of repetition of offence and witnesses being influenced.
19. In view of above, bail petitioners have carved out a case for themselves, as such, present petitions are allowed. Petitioners are ordered to be enlarged on regular bail subject to their furnishing bail bonds in the sum of Rs.30,000/- each with one local surety in the like amount to the satisfaction of the learned trial Court, besides the following conditions:
::: Downloaded on - 30/09/2022 20:03:57 :::CIS 13(a) They shall make themselves 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) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They 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) They shall not leave the territory of India without the prior permission of the Court.
20. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
21. 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 these petitions alone. The petitions stand accordingly disposed of.
A downloaded copy of this order, shall suffice for the concerned authority to accept the bail bonds/surety from the bail petitioners, without insisting for a certificate copy thereof. Authenticity of this order may be verified from the official website of this court.
(Sandeep Sharma), Judge September 30, 2022 (vikrant) ::: Downloaded on - 30/09/2022 20:03:57 :::CIS