Himachal Pradesh High Court
Amrender Singh Nagra & Anr. vs State Of Himachal on 17 October, 2023
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
1 Amrender Singh Nagra & anr. Versus State of Himachal Pradesh .
Cr. Appeal No.271 of 2020 17.10.2023 Present: Mr. Divya Raj Singh, Advocate, for the appellant/applicant.
Mr. I.N. Mehta, Senior Additional Advocate General and Ms. Sharmila Patial, Additional Advocate General with Mr. J.S. Guleria, Deputy Advocate General, for the respondent.
of Cr.MP No.3459 of 2023 The applicant/appellant No.2-Yuvraj Singh has filed rt this application under Section 389 of Criminal Procedure Code (hereinafter referred to as 'Cr.PC') for suspension of sentence passed by the learned Additional Sessions Judge-I, Una, District Una, H.P. in Sessions case No.51 of 2016, whereby the applicant along with his co-accused has convicted and sentenced as under:-
Sr. No. Sections Sentence imposed upon each of the convict
1. Under Section 120B of the Rigorous imprisonment for Indian Penal Code. life and fine for Rs.25,000/-
2. Under Section 341 of IPC Simple imprisonment for one month and fine of Rs.500/- and in case of non-payment of fine to undergo simple imprisonment for seven days.
3. Under Section 392 IPC Rigorous imprisonment for seven years and fine of Rs.20,000/- and in case of non-payment of fine to undergo simple imprisonment for 18 months.
4. Under Section 302 of IPC Rigorous imprisonment for life and fine of Rs.25,000/-
5. Under Section 201 of IPC Simple imprisonment for three years and fine of Rs.5,000/- and in case of non-payment of fine to undergo simple imprisonment for six months.::: Downloaded on - 19/10/2023 20:35:13 :::CIS 2
2. It is averred on behalf of the applicant that the .
prosecution case is based on circumstantial evidence, which is also sketchy and even the theory of conspiracy as propounded by the prosecution has not been established and the applicant has falsely been roped in. It is further averred that since the applicant is behind the bars for more than 7 years 4 months of and 19 days, as on 23.08.2023 and the appeal is otherwise likely to take some time for hearing, therefore, also the rt applicant ought to be released on bail, particularly when the appeal in all probabilities is likely to succeed.
3. On the other hand, it is urged by the learned Senior Additional Advocate General assisted by learned Additional Advocate General, that the applicant after full-fledged trial has been found to the guilty of the offence for which he has been punished and thereby convicted and sentenced that too life imprisonment, therefore, there is no occasion for suspending the sentence. More particularly, when one of the co-convict Vishal Bansal has already jumped the parole.
4. We have heard the learned counsel for the parties.
5. The case of the prosecution, in brief, as emerged from the report under Section 173 Cr.P.C. is that Shri Satish Kumar son of Shri Ran Singh, resident of Village and Post Office Mawa Sindhian, Tehsil Ghanari, Distt. Una, H.P., moved an application to the S.H.O. Police Station Gagret averring therein that his brother Shri Kashmir Singh had retired as Inspector from ITBP and was running a grocery shop at Bharwain Road, Shivbari. He used to reach at the shop daily around 9:00 a.m, ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 3 and leave his shop at around 8:00 p.m, by his own car bearing .
registration No.HP.19-6115. On 25-03-2016, when brother of Satish Kumar, Shri Kashmir Singh did not reach at home in time, then he along with his family members and some of the villagers went towards Gagret in search of him, where Up-
Pradhan Shri Madhu Sudan of Village Kaloh met them at about of 9/9:30 p.m who told them that one Tempo driver informed him that at about 8:30 p.m, he noticed that on Kaloh-Shivwari road rt some persons were indulged in assault against Kashmir Singh inside his car. Upon this information, they carried out search for Kashmir Singh, as well as, his car at the place disclosed by the Tempo driver, but they could neither find the vehicle nor Kashmir Singh. Satish Kumar was sure that some unknown persons/assailants had given beatings to his brother and kidnapped him along with his vehicle. He requested for making search of his brother along with vehicle and taking action against those persons. On the basis of said application, FIR No.26 of 2016, under Sections 382, 364 of the Indian Penal Code was registered at Police Station-Gagret. Initially the investigation was entrusted to ASI-Subhash Chand and thereafter the investigation was conducted by SI/SHO Shri Gaurav Bhardwaj. On 8.4.2016, Special Investigation Team was constituted by Superintendent of Police, Una, H.P. During the entire night of 25/26.3.2016, search was carried out by the police for the car and missing person, namely, Kashmir Singh at Kaloh Valley where they found some articles i.e. clutch wire, mat, pool of blood and tissue of blood lying on the road and the ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 4 areas adjoining to it. The blood-stains and tissue of blood were .
lifted from the spot with the help of cotton thread. The mat and clutch wire found by the police were placed in the cloth parcels and thereafter taken into possession. During the aforesaid proceedings the photographs of the articles found by the police were clicked. The Investigating Officer prepared a site-map of of the place where foot mat, clutch wire etc. were found. During the aforesaid search, the police found one mobile phone Marka rt Samsung containing one SIM BSNL lying on the link road Thaplan-Haroti-Pawara, which was identified by Shri Satish Kumar and Shri Jaswinder Singh to be that of Kashmir Singh.
The said mobile phone was taken into possession vide separate seizure memo. The Investigating Officer prepared a site-map of the place where mobile phone of Kashmir Singh was found. The police while carrying out the aforesaid search at Gagret-
Hoshiarpur Road along with the local inhabitants found one dead-body lying in the gorge, which was about 200 meters deep located near the boundary of Punjab and Himachal. The body was identified to be that of Kashmir Singh for whom the search was being carried out. The police took into possession blood-
stained stone, blood-stained muffler, blood-stained shoe, piece of twig lying near the dead-body of Kashmir Singh. The police clicked photographs of spot of recovery of dead-body and also prepared the spot map. On 26.3.2016, police lifted blood-
stained soil and control sample of soil lying near the dead-body of Kashmir Singh for the purpose of chemical examination.
Section 302 IPC was incorporated in this case. Thereafter, ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 5 ASI-Subhash Chand filled form(s) 25:35A and Ext.25:35B of .
deceased Kashmir Singh. The dead-body of Kashmir Singh was sent to Zonal Hospital-Una for postmortem where after conducting preliminary postmortem, the dead body was referred to Forensic Department RPGMC Tanda for further postmortem examination and expert opinion. The Investigating Officer of prepared form 25:39/application for getting conducted the postmortem and submitted the same before HOD Forensic rt Division Medical College Tanda along with the dead-body.
Dr. Sushil Sharma conducted the autopsy of the deceased and prepared postmortem report. Doctor opined that the cause of death is suggestive of ligature compression of neck associated with head injury. The postmortem report along with case property was handed over to the police.
On 26.3.2016 and 27.3.2016 appellant-convict-
Amrender Singh Nagra and applicant-convict-appellant-Yuvraj Singh were called by the police at Police Station Gagret for interrogation. Accordingly, they both came to the Police Station accompanied by their co-accused (convict) Vishal Bansal. After interrogation appellant-convict-Amrender Singh Nagra and applicant-Yuvraj Singh were sent back upon the supurdari of their co-accused (convict) Vishal Bansal who was further directed to produce both the appellant-convict-Amrender Singh and applicant-Yuvraj Singh in the Police Station on 28.3.2016 at 10:00 A.M, but on the same night convict-Vishal Bansal sent both the aforesaid accused/appellants-convicts towards Hoshiarpur and himself went abroad. On 29.3.2016 when ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 6 appellant-convict-Amrender Singh Nagra and applicant-Yuvraj .
Singh did not join the investigation then their whereabouts were searched by the police.
On 28.3.2016 SI/SHO Gaurav Bhardwaj obtained call detail record pertaining to the mobile numbers of appellant-
convict-Amrender Singh Nagra and applicant-Yuvraj Singh, and of also dump data of the places where certain articles i.e. foot-mat, clutch wire etc. were found during investigation. On 30.3.2016, rt upon the identification of the spot by eye-witness Shri Shakti Ram the police lifted the blood-stains with the help of cotton thread, which was put in a cloth parcel and thereafter taken into possession. Upon chemical analysis at RFSL Dharamshala, it was found to be containing human blood. On 30.3.2016, one Manish Kumar alias Nanni son of Balwinder Singh, resident of Kuthera Jaswalan, Police Station Gagret, was arrested by the police but later on discharged under Section 169 Cr.P.C. for want of evidence against him.
On finding the investigation being misled by the accused persons, on 08.04.2016, Special Investigation Team was constituted by the Superintendent of Police, Una. The Special Investigation Team inspected the spot Nos. 1 to 5 and recorded the statement of Shri Bhupinder Singh under Section 161 Cr.P.C. who disclosed in his statement that on the night of 25.03.2016, around 8:40 p.m., he was going towards Shivwari on his scooter from Kaloh bye-pass Road, and when he reached 1/2 kilometer before Shiv Bari near upper valley abadis, he saw one big vehicle like Xylo, Tata Sumo, Safari was stationed on ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 7 the road with its parking lights on and one person was talking .
on phone and towards left side there was one small car stationed with its headlights on, in which one person wearing spectacles was sitting on the driver seat with two other persons sitting in the car.
Apart from it, interrogation was made from convict of Vishal Bansal and other persons. During interrogation convict Vishal Bansal was found to be changing his stand every time rt and the facts disclosed by applicant-Yuvraj Singh and appellant Amrender Singh did not tally with each other. Upon this, suspicion raised against all the three accused persons. On 13.04.2016, convict Vishal Bansal produced a copy of interim bail granted by this Court in his favour. Appellant-convict-
Amrender Singh Nagra was apprehended from Hoshiarpur in this case and his police remand was obtained. On the disclosure made by appellant-convict-Amrender Singh, his statement about the vehicle of deceased was recorded under Section 27 of the Indian Penal Code. On 15.04.2016, on the identification of appellant-convict-Amrinder Singh, search was made at the house of maternal grandmother of applicant Yuvraj Singh at place Daggan Mukerian, but no recovery was effected in pursuance to said statement. At place Daggan, appellant-
convict-Amrinder Singh again got recorded his disclosure statement and disclosed that he had thrown the number plates of the vehicle of deceased bearing registration No.HP.19A-6115 in a canal which he can get it recovered to the police. On the identification of appellant-convict-Amrender Singh, both ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 8 number plates of vehicle of the deceased were recovered from .
Kandi small canal. On the spot, Investigating Officer prepared spot map and recorded the statements of witnesses.
On 16.4.2016, Investigating Officer recorded the statements of Gaurav Jaswal, Hoshiar Singh and Ankush Vashisht under Section 161 Cr.P.C as per their version. On the of same day statements of Yashpal and Rohit were also recorded, who disclosed that on 23.03.2016 applicant-Yuvraj and convict-
rt Amrender Nagra got welded from them one iron bolt with the iron hammer. On 17.04.2016, one Chaman Lal got recorded his statement wherein he disclosed that while he was going on his bicycle from Shiv Bari-Kaloh By-Pass road, at about half kilometer from Shiv Bari, he saw convict Vishal Bansal standing near his black colored vehicle on the road with whom two other persons were also standing. During investigation, appellant-
convict-Amrender Singh further disclosed that on 28.03.2016 he, applicant-Yuvraj Singh and accused Vishal had sold a gold ring of deceased at the shop of Rajesh goldsmith, shop No. 8 in Sarafa Bazaar, Hoshiarpur. He identified the shop and Ankush Luthra son of Shri Rajesh Luthra produced to the police one gold ring upon which words 'KS' were written, which was identified by Saravjeet as that of his father, which was taken into possession vide separate memo.
On 17.04.2016, the Alto Car of deceased Kashmir Singh upon which number plates with No. PB07N-9802 were affixed, was found parked by the side of Hoshiarpur-Chandigarh Road.
On tallying Engine and Chassis numbers the same was found ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 9 to be that of deceased Kashmir Singh. The recovered car was .
taken into possession by the police. The police found some blood stains present on the car-mat and rare window of the left side of the car. The recovered car along with sealed parcel containing number plates HP.19A-6115 were sent to RFSL Dharamshala for chemical examination vide R.C. No.10/16 of dated 18.04.2016. According to the report of RFSL Dharamshala, (1) The high security number plates Exhibit E/2a rt (Rear) and Exhibit E/2b (Front) were physically fitted and found the number plates of the vehicle (Alto Car) E/1. (2) The cracks on the windscreen in the exhibit E/1 (Alto Car) were due to hit from inside. Meaning thereby the recovered Alto car was found to be that of deceased Kashmir Singh. On 18.04.2016, Sections 364, 382, 34 IPC were removed and Sections 392, 120B IPC were added. On the basis of supplementary statement of Gaurav Jaswal, the CDR pertaining to mobile number 98573- 90167 was obtained, which revealed that convict Vishal Bansal had made two calls to this witness Gaurav Jaswal around 9:4:52 & 9:5:11 from tower location of Panjoa Kalan, which is situated near spot No.1. Convict Vishal Bansal also made two calls from aforesaid mobile number to his wife around 9:15:56 & 9:16:37 from tower location of Amb & Mubarikpur. Convict-
Vishal Bansal also made two calls from aforesaid mobile number to applicant-Yuvraj Singh around 11:15:59 & 11:17:49 (night) on his mobile number 097807-13568 from tower location of Gagret. During investigation, it was found that convict-Vishal Bansal had procured mobile SIM of aforesaid ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 10 number on the basis of I.D of an unknown person. The said SIM .
was taken into possession from convict-Vishal Bansal by the police and sent to RFSL Dharamshala for examination.
On 21.4.2016, appellant-convict-Amrender Nagra under police custody led the police party to Kala & Sons Auto Repair and identified the place from where they (Amrender Nagra and of Yuvraj Singh) had picked-up clutch wire. The police prepared spot-map of that shop. The appellant-convict-Amrender Singh rt also identified the place on Kaloh-upper Judvalley Bye-pass ahead of 400 meters from the shop of deceased where convict-
Vishal Bansal had parked his vehicle XUV bearing-registration No.HP.19C-0788 and had stopped the car of the deceased and thereafter applicant-Yuvraj Singh and appellant-convict-
Amrender Singh were made to sit in the car of the deceased by convict-Vishal Bansal. Appellant-Amrinder Singh also identified the spot ahead of one kilometer from the aforesaid spot No.1 and disclosed that they committed murder of Kashmir Singh by strangulating him with the clutch wire and at that time one tempo had also passed from there. This spot was marked as spot No.2. Accused Vishal also accompanied them and returned back from this place. Appellant-convict-Amrender Singh also disclosed that at a distance of about 150 Gaj from spot No.2 they inflicted the blow of hammer on the head and mouth of Kashmir Singh. At this place clutch wire and foot-mat of vehicle had fallen down by mistake and it was conveyed to them by accused Vishal later on. This spot was marked as spot No.3.
Appellant-convict-Amrender Singh also led the police party to ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 11 another spot on the same way and identified the spot where .
applicant-Yuvraj Singh had thrown mobile of deceased Kashmir Singh, which was marked as spot No.4. Thereafter, appellant-
convict-Amrender Singh also led the police party to the spot on Main Hoshiarpur Road and disclosed that they parked the vehicle of deceased there and threw the dead-body of deceased of into a gorge. This place was marked as spot No.5. On 21.4.2016, applicant-Yuvraj Singh was arrested and produced rt before the Court from where he was remanded to police custody for seven days. Witness Shakti Ram identified applicant-Yuvraj Singh and disclosed that he is the same person who on 25.03.2016 was seen by him leaning on the driver seat of the car of the deceased from outside the car.
On 22.04.2016, while in custody appellant-convict-
Amrender Singh got recorded his disclosure statement to the police whereby he disclosed that he had placed the mats of vehicle of the deceased on the lintel of his house and had thrown the blood-stained cap of deceased in the bushes in front of his house, which he can get recovered. Thereafter, the accused led the police party to house and got recovered two blood-stained mats and blood-stained cap of the deceased. The cap was identified by the son of the deceased to be that of his father. The police took into possession the recovered mats and cap and prepared site map of the places of said recoveries. The recovered mats and cap were sent to RFSL Dharamshala for chemical examination.
::: Downloaded on - 19/10/2023 20:35:13 :::CIS 12On 23.4.2016, Shri Hoshiar Singh, the father of .
applicant-Yuvraj Singh handed over the mobile phone of dual Sim No.98766-73738 & 82890-78356 to the police. This mobile was of the wife of Hoshiar Singh and upon checking CDR it was found that convict-Vishal Bansal was regularly making calls on aforesaid number from his mobile No.98822-22446.
of On 23.4.2016, applicant-Yuvraj Singh made a disclosure statement and disclosed that on 02.04.2016 he had gone to rt Bhiwari Rajasthan to the house of his friend Vinay Kumar where he had placed SIM No.97807-13568 and five SIM cards of appellant-convict-Amrender Nagra, out of which two SIMs were bearing Nos.99884-09900, 94173-64555, three other SIM and two memory cards along with one purse under the mattress of the bed.
On 24.04.2016, applicant-Yuvraj led the police party to the house of Vinay Kumar Bhiwari Rajasthan from where applicant-Yuvraj got recovered the aforesaid articles. All the articles were sent to RFSL Dharamshala. During investigation it was found that applicant-Yuvraj Singh and appellant-convict-
Amrender Singh had mortgaged three mobile phones against Rs.500/- with their friend Amit Sharma. When Amit Sharma came to know that applicant-Yuvraj Singh and appellant-
convict-Amrender Singh had committed murder in the State of Himachal Pradesh then he threw all the three mobile phones in Bhangi Chow. The statement of Amit Sharma under Section 164 Cr. P.C was also got recorded. On 25.4.2016, during the search of residential house of appellant-convict-Amrender Singh ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 13 at Hoshiarpur one helmet was recovered upon which Ultra by .
Studds was written. Shri Satish Kumar identified the helmet as of his own and said that on 25.3.2016 he had left the said helmet in the shop of his brother Kashmir Singh who had also used the same on the day time and was bringing the said helmet to home on his return in his car. The said helmet was of taken into possession by the police which was thereafter sent to RFSL Dharamshala for chemical examination. On 27.4.2016, rt applicant-Yuvraj got recorded disclosure statement wherein he disclosed that he had concealed one iron hammer under the bushes at Balbir Colony Hoshiarpur. The said iron hammer was recovered in pursuance to his disclosure statement and the same was also sent to RFSL Dharamshala. The aforesaid articles were found to be containing blood of 'O' group. During investigation it was found that mobile Nos.98822-22446 and 98573-90167 were being used by convict-Vishal Bansal and he had made calls from mobile No.98573-90167 to Gaurav Jaswal from spot No.1. During investigation, it was, also found that mobile Nos.97807-13568, 98766-73738, 82890- 78356, 98726- 22808, 90413-58884 were being used by applicant-Yuvraj Singh and before, as well as, after occurrence convict-Vishal Bansal had remained in contact regularly from his mobile Nos.98822-22446 & 98573-90167 with applicant-Yuvraj Singh on his mobile No.97807-13568.
Convict-Vishal Bansal had obtained anticipatory bail from Hon'ble High Court of Himachal Pradesh and as per the direction of Hon'ble High Court of Himachal Pradesh convict-
::: Downloaded on - 19/10/2023 20:35:13 :::CIS 14Vishal Bansal joined the investigation. On 30.4.2016, convict-
.
Vishal Bansal produced his vehicle bearing No.HP.19C-0788 along with documents, which was used by him in committing murder and taken into possession by the police. Convict-Vishal Bansal also handed over his mobile phone along with SIM No.98822-22446 to the police which after taking into of possession was sent to RFSL Dharamshala. On the same day applicant-Yuvraj Singh made a disclosure statement wherein he rt stated that he and appellant-convict-Amrender Singh had burnt the papers of vehicle No.HP.19A-6115 in the bushes at village Hargarh Hoshiarpur. Thereafter, the said accused led the police party to the aforesaid village and got recovered half burnt papers of vehicle No.HP.19A- 6115. These papers were also taken into possession and sent to RFSL Dharamshala. The accused persons tried to cause the evidence of the commission of offence to disappear, burnt the documents of vehicle No. HP.19A-6115, concealing the original number plates of the vehicle and washing of their clothes bearing the blood stains.
On 2.5.2016, applicant-Yuvraj Singh was remanded to the judicial custody. On 18.5.2016, this Court rejected the interim bail of convict-Vishal Bansal. During investigation, the viscera of deceased was sent to RFSL Dharamshala for chemical analysis. The investigation agency got prepared Aks Tatimas and all other relevant papers from revenue agency and also prepared maps of the spots. The accused persons had sold the vehicle of deceased to Harvinder Singh and Ranjit Singh, residents of Sherpur Gulind Hoshiarpur for Rs.85,000/- who ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 15 were implicated in the case and Section 411 IPC was added.
.
Both these accused persons Harvinder Singh and Ranjit Singh did not face the trial and are proclaimed offenders.
After rejecting the interim bail on 18.5.2016, convict-
Vishal Bansal remained absconded. Convict-Vishal Bansal also filed S.L.P before the Hon'ble Supreme Court, which was of dismissed on 03.06.2016 and he was directed to surrender before the appropriate court. On 16.6.2016, convict Vishal rt Bansal surrendered before this Court and on 17.6.2016 he was arrested. During investigation, on the identification of convict-
Vishal Bansal, Investigating Officer prepared map of spot No.1, where convict-Vishal Bansal intercepted the vehicle of deceased and got boarded his both co-accused in the said vehicle. He returned back via Gagret Bazar and escorted the accused persons by moving ahead of them in order to find out whether there was any Naka laid by the police or not. At spot No.2, he signaled to his co-accused persons for going ahead. Thereafter, he called Gaurav from his mobile No. 98573-90167 and asked whether they had taken dinner. He talked with applicant-Yuvraj Singh on his mobile No. 97807-13568 around 10:25 pm, 11:52 pm, 12:59 am and on the morning of 26.3.2016 around 8:40 am, 8:48 am, as well as, 11:15 & 11:17 pm from his mobile No. 98822-22446. Convict-Vishal Bansal destroyed his mobile phone and SIM, as such Section 201 was added.
After completion of investigation, challan was presented under Section(s) 302, 392, 341, 120B, 201 of the Indian Penal Code, 1860 before the learned Judicial Magistrate, 1st Class, ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 16 Court No.II, Amb, who after taking cognizance and necessary .
compliance committed the case vide order dated 30.9.2016 to the Court of learned Sessions Judge, Una, who in turn assigned it to the learned Additional Sessions, Judge-I, Una, for its disposal.
Upon hearing by Court and upon finding the existence of of prima facie case, all the accused persons charged under Section(s) 120B, 341, 392, 302, 201 of the Indian Penal Code rt 1860, to which they pleaded not guilty and claimed trial.
To bring home the guilt of the accused persons under the aforementioned sections, the prosecution has examined 56 witnesses in all and also placed reliance upon documentary evidence collected and various scientific reports.
On the closure of the prosecution evidence, the statements of accused persons under Section 313 Cr.P.C were recorded. Their defence is that of total denial simplicitor. They have stated that they are innocent and have not committed any such offences. The accused persons also examined three witnesses in their defence. After tendering Ext. DA to DF, the accused persons closed their evidence.
6. The learned Trial Court after recording the evidence and appreciating the same culled out the circumstances, which according to it established the case of the prosecution on record:
"(a) The deceased Kashmir Singh, who was prosperous man, was running a grocery shop at Shivbari Gagret and also rented out accommodation in the same building to the workers of the Luminous factory at Gagret.::: Downloaded on - 19/10/2023 20:35:13 :::CIS 17
(b) Deceased Kashmir Singh used to go to his shop .
daily in his Alto Car bearing No. HP.19A-6115 in the morning from his village Mawasindhian through Shivbari-Kaloh bye-pass road and return back to his home at about 8:30 p.m.
(c) Accused Amrender Singh, Yuvraj Singh and convict Vishal Bansal planned to rob Kashmir Singh as they were running with financial crisis.
of
(d) Convict Vishal Bansal envied the progress of Kashmir Singh and desired to establish the same business as that of Kashmir Singh to earn more
(e) rt money.
Getting the iron handle welded in the hammer by accused Yuvraj Singh and Amrender Singh from PW- 12 Yashpal.
(f) Lifting the clutch wire from the bunch lying outside the closed shop named Kala & Sons at Shivbari Gagret.
(g) On 25.3.2016 at about 8:15 to 8:30 p.m, accused Vishal Bansal along with other accused persons left his office in his black XUV Car and cleverly succeeded in avoiding the offered company of his friend Gaurav Jaswal.
(h) At that time of the leaving of the office by accused persons they had planned in their minds to intercept the vehicle of Kashmir Singh who used to take the Shivbari-Kaloh byepass road to his home and further to rob and kill him and for this end they carried clutch wire and hammer with them.
(i) The vehicle Alto Car bearing No. HP.19A-6115 of Kashmir Singh was intercepted by the accused persons at spot No.1 in pursuance to their conspiracy on the pretext that some mechanical defect had appeared in car of convict Vishal Bansal and thus convict Vishal Bansal made Amrender Singh Nagra and accused Yuvraj to go with Kashmir Singh in his Alto Car.
(j) Accused Amrender Singh Nagra and accused Yuvraj Singh, in pursuance to their conspiracy committed murder of Kashmir Singh at spot No.2 with the help of clutch wire and hammer already carried by them.
::: Downloaded on - 19/10/2023 20:35:13 :::CIS 18(k) Accused Amrender Singh Nagra and accused Yuvraj Singh after committing murder of Kashmir Singh .
threw the clutch wire and one mat of the car on the way at spot No.3.
(l) Accused Amrender Singh Nagra and accused Yuvraj Singh, thereafter, threw the mobile phone of deceased at spot No.4 on the way towards Hoshiarpur.
(m) Thereafter, accused Amrender Singh Nagra and of accused Yuvraj Singh threw the dead body of Kashmir Singh in a gorge at spot No.5 on the way towards Hoshiarpur (Punjab).
(n) rt Convict Vishal Bansal reached his office back in his same car and after having dinner with PW-9 left to his home at about 9:30 p.m.
(o) Accused Amrender Singh Nagra and accused Yuvraj Singh in pursuance to their conspiracy took away the Car and gold ring of Kashmir Singh to Hoshiarpur (Punjab) and sold the gold ring to PW-
14 Ankush Luthra.
(p) Convict Vishal Bansal gave different versions to his friends PW-9 Gaurav Jaswal and PW-10 Hoshiar Singh regarding his earlier arrival to his office on 25.3.2016 after leaving accused Amrender Singh Nagra and accused Yuvraj. This fact in absence of any explanation proves the dubious conduct of convict Vishal Bansal and his attempt to conceal the real facts.
(q) Noticing convict Vishal Bansal along with accused Yuvraj Singh and Amrender Singh Nagra with the black XUV Car by PW-2 Chaman Lal, at spot No.1 i.e. on Shivbari -Kaloh bye-pass road, at the relevant time of occurrence.
(r) Noticing convict Vishal Bansal with his Black XUV car and deceased Kashmir Singh with his Alto Car by PW-23 Bhupinder Singh at spot No.1 at the relevant time of occurrence.
(s) Noticing accused Yuvraj Singh with the Alto Car of deceased by PW-29 Shakti Singh at spot No.2 i.e. Shivwari-Kaloh bye-pass road at the relevant time of Occurrence.
(t) Conveying the information by PW-29 Shakti Singh to PW-18 Madhusudan regarding stationing of Alto Car at spot No.2 and regarding scuffle with that Car driver, at the relevant time of occurrence and this ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 19 information is proved to have been recorded in complaint Ext. PW-1/A and FIR Ext. PW-33/A. .
(u) Appearance of convict Vishal Bansal, Amrender Singh Nagra and Yuvraj Singh in the Police Station- Gagret on 27.3.2016.
(v) Non-appearance of accused Amrender Singh Nagra and accused Yuvraj in the Police Station-Gagret on 29.3.2016 despite being directed to do so.
of (w) Assuring PW-6 Chandan Kumar by convict Vishal Bansal for providing him similar kind of employment as he had earlier proves the strong desire of convict Vishal Bansal to run the same
(x) rt business as that of Kashmir Singh.
Accused Amrender Nagra got recovered to the police the number plates HP.19A-6115 in pursuance to his disclosure statement Ext. PW-17/A, which later on proved to be that of car of deceased Kashmir Singh.
(y) Accused Amrender Singh Nagra got recovered car mats of Alto car of deceased Kashmir Singh from his house in pursuance to his disclosure statement Ext. PW-5/H made to the police and the said car mats were found to be stained with the blood of Kashmir Singh.
(z) The recovery of SIMS, memory cards etc. of accused Yuvraj and Amrender from the house of Vinay Kumar (PW-31) at Bhiwari Rajasthan establishes the fact that the accused Amrender Singh Nagra and accused Yuvraj Singh went there in the car of Kashmir Singh (deceased) and stayed there after the Occurrence.
(a1) The proposal made by accused Yuvraj Singh and Amrender Singh Nagra to PW-31 Vinay Kumar and PW-26 Mahantia to sell Alto Car No. HP.19-6115.
(a2) Procuring fake number plates of No. PB.07N-9802 and affixing the same on the Alto Car of the deceased.
(a3) The sale of Alto Car of deceased Kashmir Singh to Ranjit Kumar alias Babloo and Devender Kumar who are absconders in this case.
(a4) Recovery of abandoned Alto Car bearing number plates PB.07N-9802 from the place near Toll Plaza ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 20 on Chandigarh Highway near Rayat Bhara College, Hoshiarpur.
.
(a5) The radial cracks which were found on the Alto Car of deceased Kashmir Singh at the time of its recovery were opined to be as a result of hit from inside the car.
(a6) The recovery of hammer in pursuance to the disclosure statement Ext. PW-40/A made by accused Yuvraj Singh and presence of blood of of deceased Kashmir Singh on the same.
(a7) The recovery of burnt papers/documents of the vehicle of deceased Kashmir Singh in pursuance to rt the disclosure statement Ext. PW-43/A, made by accused Yuvraj.
(a8) The recovery of helmet from the house of accused Amrender Singh during search which was identified by PW-1 Satish Kumar and presence of hair of deceased Kashmir Singh on the same.
(a9) Opinion of the Expert that some injuries found on the body of deceased Kashmir resulted from clutch wire and hammer and such injures were individually, as well as, collectively sufficient to cause his death.
(a10) The report of DNA analysis which confirmed the presence of blood of Kashmir Singh on foot mats (recovered from the house of Amrender Singh), Alto Car, clutch wire, hammer etc. and which also confirmed the presence of hair of Kashmir Singh on the helmet recovered from the house of accused Amrender Singh.
(a11) Identification of the spots i.e. spot No. 1 to 5 by the accused persons to the police during investigation on Judge regarding which identification memos were prepared by the police and said facts were also corroborated in the independent evidence led by the prosecution."
7. It is thereafter concluded that since the accused (now convicts) had not put forth any explanation to absolve themselves of the circumstances appearing against them and such circumstances otherwise formed a complete chain, there is no escape from the conclusion that in all human probability the ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 21 crime was committed by the convicts and none else. It was .
further concluded that the circumstances so established were fully consistent with the guilt of the convicts and inconsistent with their innocence. Accordingly, it is concluded that Kashmir Singh has been intercepted, robbed and then murdered by the convicts in pursuance of conspiracy as between them and it is of thereafter that appellant-convict-Amrender Singh Nagra and applicant-convict-Yuvraj Singh in pursuance to the conspiracy rt caused disappearance of the evidence and thus liable to be convicted for the commission of offences for which they have been charged.
Section 389 of Cr.P.C. reads thus:-
389. Suspension of sentence pending the appeal;
release of appellant on bail.
(1) Pending any appeal by a convicted person, the Appellate Court may, for reasons to be recorded by it in writing, order that the execution of the sentence or order appealed against be suspended and, also, if he is in confinement, that he be released on bail, or on his own bond.
[Provided that the Appellate Court shall, before releasing on bail or on his own bond a convicted person, who is convicted of an offence punishable with death or imprisonment for life or imprisonment for a term of not less than then years, shall give opportunity to the Public Prosecutor for showing cause in writing against such release:
Provided further that in cases where a convicted person is released on bail it shall be ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 22 open to the Public Prosecutor to file an application for the cancellation of the bail] .
(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of an appeal by a convicted person to a Court subordinate thereto.
of (3) Where the convicted person satisfies the Court by which he is convicted that he intends to present an appeal, the Court shall,-
rt (i) where such person, being on bail, is sentenced to imprisonment for a term not exceeding three years, or
(ii) where the offence of which such person has been convicted is a bailable one, and he is on bail, order that the convicted person be released on bail, unless there are special reasons for refusing bail, for such period as will afford sufficient time to present the appeal and obtain the orders of the Appellate Court under sub- section (1); and the sentence of imprisonment shall, so long as he is so released on bail, be deemed to be suspended.
(4) When the appellant is ultimately sentenced to imprisonment for a term or to imprisonment for life, the time during which he is so released shall be excluded in computing the term for which he is so sentenced."
8. It is by now well settled the benefit of suspension of sentence can be granted only in exceptional cases, in cases involving conviction under Section 302 of the Indian Penal Code the Court should consider the relevant factors like the nature of accusation made against accused, the manner of commission of crime, the gravity of the offence, and the desirability of releasing ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 23 the accused on bail after having been convicted for committing .
the serious offence of murder.
9. The endeavour on the part of the Court, should be to see as to whether the case presented by the prosecution and accepted by the trial Court can be said to be a case in which, ultimately the convict stands for fair chances of acquittal. If the of answer to the abovesaid question is to be in the affirmative, as a necessary corollary, the Court shall have to say that, if rt ultimately the convict appears to be entitled to have an acquittal at the hands of the appellate Court, he should not be kept behind the bars for a pretty long time till the conclusion of the appeal, which usually takes very long for decision and disposal. However, while undertaking the exercise to ascertain whether the convict has fair chances of acquittal, what is to be looked into is something palpable. To put it in other words, something which is very apparent or gross on the face of the record, on the basis of which, the Court can arrive at a prima facie satisfaction that the conviction may not be sustainable.
The appellate Court should not re-appreciate the evidence at the stage of Section 389 Cr.P.C. and try to pick up a few lacunae or loopholes here or there in the case of the prosecution. Such would not be a correct approach. This was so held by the Hon'ble Supreme Court in a recent judgment case titled as Omprakash Sahni Versus Jai Shankar Chaudhary and another (2023) 6 Supreme Court Cases 123.
As a matter of fact, the Hon'ble Supreme Court in the aforesaid case of Omprakash Sahni has culled out the relevant ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 24 factors for grant of denial of benefit under Section 389 of .
Cr.P.C. are as follows:
(1) "When the citizens are scared to lead a peaceful life and nature of the offence(s) in question (offence of murder in the present case), usher in an impediment in establishment of orderly society, the duty of the court becomes more pronounced and the burden is heavy.
There should have been proper analysis of the of criminal antecedents. Needless to say, imposition of conditions is subsequent to the order admitting an accused to bail. The question should be posed whether the accused rt deserves to be enlarged on bail or not and only thereafter issue of imposing conditions would arise. The Supreme Court does not deny for a moment that period of custody is a relevant factor but simultaneously the totality of circumstances and the criminal antecedents are also to be weighed. They are to be weighed in the scale of collective cry and desire. The societal concern has to be kept in view in juxtaposition of individual liberty. Regard being had to the said parameter the Supreme Court is inclined to think that the social concern in the case at hand deserves to be given priority over lifting the restriction on liberty of the accused."
(2) Section 389 Cr.P.C. deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed. If accused is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine.
(3) The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail.
::: Downloaded on - 19/10/2023 20:35:13 :::CIS 25(4) The mere fact that during the trial, accused were granted bail and there was no .
allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail."
of
10. Bearing in mind, the aforesaid principles of law and upon cursory scanning of evidence on record, we are unable to rt agree with the contention of the applicant that either there is absolutely no case against the applicant or that the evidence against him is so weak and feeble in nature that ultimately in all probabilities the proceedings would terminate in his favour.
11. Moreover, it is the quality of evidence and not quantity of evidence, which is material and as would be noticed above, the learned Trial Court after full-fledged trial has culled out as many as 37 circumstances against the accused persons (convicts) which according to the Court below before concluding that a complete chain had been established to conclude that the crime had been committed by the accused persons and none other else and these circumstances were fully consistent with the guilt of the accused persons (convicts) and inconsistent with their innocence.
Accordingly, we find no reason to suspend the sentence, therefore, the application is dismissed, however, we make it clear and it otherwise goes without saying that any observation(s) touching upon the merits of this case is purely for the purpose of deciding the instant application and shall not ::: Downloaded on - 19/10/2023 20:35:13 :::CIS 26 be construed to be an expression on the final opinion in the .
pending criminal appeal. Application stands disposed of.
Cr. Appeal No.271 of 2020List as per its own turn.
of
(Tarlok Singh Chauhan)
Judge
rt (Ranjan Sharma)
Judge
October 17, 2023
(Shivender)
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