Himachal Pradesh High Court
Sh.Bishan Lal Sharma S/O Sh.Lal vs And on 20 June, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 20th DAY OF JUNE, 2022
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) No. 190 OF 2022
Between:-
AKHIL SHARMA S/O SHRI BISHAN LAL
SHARMA, R/O VILLAGE JAIPUR, POST
OFFICE PUID, TEHSIL & DISTRICT
KULLU, H.P. THROUGH HIS FATHER
SH.BISHAN LAL SHARMA S/O SH.LAL
CHAND, R/O VILLAGE JAIPUR, POST
OFFICE PUID, TEHSIL & DISTRICT
KULLU, H.P. r ...PETITIONER
(BY SH. N.S. CHANDEL, SENIOR ADVOCATE,
WITH MR.VINOD K. GUPTA, ADVOCATE.)
AND
STATE OF HIMACHAL PRADESH. ...RESPONDENT
(BY SH.HEMANT VAID, ADDITIONAL
ADVOCATE GENERAL.)
Whether approved for reporting?
Reserved on: 20.5.2022
Decided on: 20.6.2022
This petition coming on for pronouncement this day, the Court
passed the following:
ORDER
Petitioner has approached this Court under Section 439 of the Code of Criminal Procedure (for short Cr.P.C.) seeking bail in case FIR No. 239 of 2021, dated 26.8.2021, registered in Police Station Kullu, District Kullu, Himachal Pradesh, under Sections 302, 307, 323, 325, 326, 201, 147, 148, 149, 440, 354, 354-B, 109 and 34 of the Indian Penal Code (for short 'IPC'), Section 25 of Arms Act and Sections 3(1)(r), (s), (w) & 3 (2)(va) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as SC&ST Act).
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2. Status Report stands filed. Record was also made available along with CCTV Footage of Café Waters Edge, being relied upon by the prosecution for identification of accused and other persons.
.
3. Prosecution case is that on 25.8.2021 at about 7:30 P.M. an information was received in Police Station, Kullu that at near Saeubag at Chhururu, some mishap had occurred. This information was transmitted by Police Station staff to QRT team and to SI Kushal Kumar, the then SHO, who was on patrolling. SI Kushal Kumar, out of his Patrolling Party, deputed ASI Vij Ram and Constable Om Parkash to reach Regional Hospital, Kullu to handle the situation on arrival of injured and alongwith remaining team of Patrolling Party he rushed to spot. On reaching near Café Water Edge (hereinafter referred as Café) at Chhururu, he met Constables of QRT Team of Kullu Police who were controlling the traffic on the spot, managing preservation of the spot and were waiting for Ambulance to shift injured persons from spot. Son of victim Yuma Devi and other onlookers were also present on the spot. Paras Ram was lying in katcha portion of road on side of road. He was bleeding badly and at some distance from him, in the middle of the road, his broken vehicle was there. On left front seat thereof injured Yuma Devi was crying due to pains. SI Kushal Kumar instead of waiting for Ambulance directed QRT Team and son of victim to shift injured to the Hospital in his Police vehicle. Thereafter on reaching the Hospital, treatment of injured was started in emergency. During treatment, statement of Yuma Devi was recorded under Section 154 Cr.P.C. by ASI Vij Ram, on the basis of which FIR was registered under Sections 307, 320, 147, 148, 149 IPC, Section 25 of Arms Act and Section 3 of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act.
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4. Keeping in view serious condition of victims during night, they were referred to Medical College and Hospital, Nerchowk, Mandi. As provisions of SC&ST Act were attracted, therefore, in compliance of .
communication dated 26.8.2021 issued by Superintendent of Police, Kullu, investigation was transferred to Additional Superintendent of Police, Kullu.
5. As per medical record, following major injuries were found on the person of victim Yuma Devi and Paras Ram.
(a) Yuma Devi.
"1. Open wound left leg-blunt injury.
2. Lacerated wound left leg-blunt injury.
3. Swelling both arms-blunt injury.
4. Swelling distal phalange both arms-blunt injury.
5. Open wound left thumb blunt injury.
6. Fracture both bone forearm-grievous nature.
7. Fracture left leg-grievous nature."
(b) Paras Ram:
"(1) Lacerated Wound (3x2 CM) over frontal region.
(2) Bruise (variable size) over right and left shoulder 10x3, 2x1 cm, 5x3 cm.
(3) Bruise (10x3 cm) over left shoulder. (4) Open wound over right forearm (3x1 cm, 3x1 cm, 4x2 cm). (5) Open wound over left forearm.
(6) Bruise (6x4 cm) over left thigh 9 cm from ASIS. (7) Bruise (5x3 cm over Right thigh 10 cm from ASIS. (8) Open wound (3x1, 4x2, 3x1.5 cm, 4x1) over left leg. (9) Open wound (4x1) cm over right leg. (10) Lacerated wound (6x3 cm) over left arm. (11) Bruise (5x3 cm) over left knee. (12) Bruise (variable size).
(13) fracture hank both bone forearm & leg both side."
6. During investigation statement of Yuma Devi was also recorded on 2.9.2021 in Medical College and Hospital, Nerchowk, wherein she had given detailed statement about dispute and incident with explanation that at ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 4 Cr.M.P. (M) No. 190 of 2022 the time of recording of previous statement immediately after the attack when she was in Kullu Hospital, she was grievously injured and was under shock and influence of various kinds of drugs/injections administered to her by the .
doctors, and was in semi-conscious state, and in between her statement was being recorded by the Police and in such state of mind and body she could not narrate the facts of incident properly and completely.
7. Statement of victim has also been recorded under section 164 Cr.P.C. before Judicial Magistrate First Class, Kullu on 9.11.2021. As per prosecution case, as also narrated in the statement of victim Yuma Devi depute had arisen between complainant party and assailants party with respect to sale and purchase of land and a threat was extended by Khimi Ram alias Kewlu to the injured party, whereupon on 23.8.2021 injured party went to Police Station, Kullu, but their FIR was not registered and they were called on next morning and on 24.8.2021, when they went to Police Station, Kullu, Khimi Ram alias Kewlu was also found summoned there, but he did not come to I.O., but kept on sitting in his vehicle behind the Police Station and when by noon Yuma Devi felt hungry, she alongwith her husband went outside the Police Station to have some eatables. When they reached near District Court Kullu, Khimi Ram came behind them in his vehicle and stopped his Car near the couple and took out a danda from Dickey of his Car, whereas his driver Vijay took out a rod and both of them tried to beat her husband and at that time Sidhu was also accompanying the assailants. Sidhu held her husband, whereas Khimi Ram went on beating him. The moment Vijay tried to give blow to her husband, Yuma Devi rushed and snatched the rod from him and asked to leave her husband, with warning that otherwise she will also hit. By that time, two Policemen also came, one of them caught her husband alongwith Sidhu and Khimi Ram kept on beating her husband. Yuma Devi hit ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 5 Cr.M.P. (M) No. 190 of 2022 the vehicle of Khimi Ram with rod and cried loudly asking to leave her husband with threat that otherwise she would damage the vehicle. In the meanwhile, Vijay came and snatched the rod from her and slapped her and .
thereafter Khimi Ram, Policemen and Vijay beat her husband. With fist blow of Khimi Ram, her front tooth was dislocated. Thereafter Police came and scuffle was ended and they went home.
8. On 25.8.2021, they were again called in the Police Station at 10:00 A.M., wherefrom they were sent for medical examination and thereafter they returned back to Police Station, where in front of Additional S.P., Khimi Ram and injured party explained their respective versions. Despite advice of Additional S.P., Khimi Ram did not agree to resolve the dispute and they left the Police Station. Thereafter husband of Yuma Devi received a telephonic call from Raj Kumar, who was with Chander Kiran alias Gaurav, Sidhu, one Advocate and brother-in-law of Khimi Ram for the whole day. Raj Kumar had suggested to resolve the dispute by sitting together, but husband of victim had replied that Khimi Ram did not pay heed to the advice of Additional S.P., therefore, there is least possibility of compromise and had stated that tomorrow they shall meet in Police Station. At 6:00 P.M., Gaurav again called them telephonically and said that incident, which had taken place was not a good thing and asked to resolve the matter by sitting together. By that time, they reached near Water Edge Café, but movement of their vehicle was blocked by parking a Scorpio in the middle of the road and Khimi Ram alias Kewlu, Sidhu, Vijay, brother-in-law of Khimi (Akhil) and other persons came from front side and some persons came from back side and hit their vehicle with stones and when they stopped the vehicle, assailants attacked the couple and husband of complainant was taken to back side of the vehicle and was beaten badly by breaking his foot and causing other injuries and she was ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 6 Cr.M.P. (M) No. 190 of 2022 also beaten on the seat of vehicle. Assailants tried to pull her out, but she held the liver of gear with her leg, as such they could not pull her out. They torn her clothes and molested her, apart from breaking her arms and leg. She .
has given details of role of accused persons in her statement recorded under Section 161 Cr.P.C. and statement recorded on oath before Judicial Magistrate Fist Class.
9. As per prosecution case, after having CCTV Footage of Café, it has been found that assailants were present in café since about quarter to 4:00 P.M. on 25.8.2021 and they were waiting for victims and the moment victims reached there, they stopped their vehicle and attacked them. In CCTV Footage one Ritik was also found present, who has been interrogated intensively and in his statement he has also stated that Khimi Ram, Vijay, Sidhu and Akhil and some other persons unknown to him were present in Café and were discussing about some matter at a side and they were trying to hide something from him. He has also witnessed the incident and had stated that Akhil was also involved in the attack.
10. Learned counsel for the petitioner has submitted that there are contradictions and improvements in the statements of complainant/victim recorded under Section 154 Cr.P.C, 161 Cr.P.C. and 164 Cr.P.C. He has submitted that first version was given by the complainant in Hospital at Kullu, wherein she has not named petitioner Akhil as an assailant, rather she has named Chander Kiran @ Gaurav and Raj Kumar as assailants, but during investigation her said version has been found incorrect and Chander Kiran @ Gaurav and Raj Kumar have been discharged by the Investigating Agency under Section 169 Cr.P.C., as also for that they were not present on the spot, but somewhere else. It has been further submitted that in MLC of injured Yuma Devi, it has been recorded that at the time of medical examination she ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 7 Cr.M.P. (M) No. 190 of 2022 was conscious, cooperative and oriented to time, place and person and, therefore, her first version was the true version, wherein petitioner has not been named and apart from naming the petitioner Akhil in her supplementary .
statement as well as statement recorded before Magistrate, there is no evidence to connect the petitioner with commission of offence and he has been implicated only after 2.9.2021, i.e. after recording of supplementary statement of Yuma Devi, whereas incident had taken place on 25.8.2021. It has been further submitted that clothes alleged to be recovered from the petitioner were sent for chemical analysis to Forensic Science Laboratory, but nothing incriminatory was found thereon, like blood and DNA Profiling indicating involvement of petitioner in commission of offence. He has further submitted that one Ravinder Negi has been stated to have arrived on the spot, in the statement of Yuma Devi, but in the list of witnesses Ravinder Negi has not been cited as a witness. It has been stated that there was enmity between both the parties and out of enmity, petitioner Akhil, being brother-in- law of main accused Khimi Ram, has been implicated falsely in order to harass and to take revenge, whereas there is no eye witness to substantiate the alleged presence of petitioner on the spot.
11. It has also been contended that petitioner Akhil has been implicated in the case on the basis of statement of Yuma Devi and also on the basis of alleged CCTV Footage of Café, but in the said CCTV Footage, petitioner has been stated to be present till 5:30 P.M., whereas incident is stated to have taken place at about 7:00 P.M. and, therefore, presence of petitioner about more than one hour before the incident cannot be made basis to conclude that petitioner Akhil was also involved in commission of offence.
12. Learned Additional Advocate General has submitted that mental state of Yuma Devi at the time of recording statement under Section 154 ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 8 Cr.M.P. (M) No. 190 of 2022 Cr.P.C. is apparent from the MLC itself, wherein it has been recorded that victim had suffered serious grievous injuries. Her both arms and one leg were fractured by beating brutally and she was suffering from hypertension prior to .
the incident and doctor had also recorded that she was complaining loss of consciousness, seizure and ENT bleeding and at that time she was given pain killer injections which affect the consciousness of the person and, therefore, first statement of Yuma Devi, recorded by the Police under Section 154 Cr.P.C. cannot be stated to be a complete and correct version of the incident. At that time, she was under trauma because of her personal injuries as well as serious condition of her husband, who was beaten in front of her brutally and she was under a shock.
13. Regarding CCTV Footage it has been stated by learned Additional Advocate General that it is not case of the prosecution that petitioner was not present in the café after 5:30 P.M., but at 5:38 P.M. he has been noticed coming from front side, where his face is completely identifiable. It has been further stated that from CCTV Footage it is evident that time of incident has been recorded as 6:40 P.M. because there was gap of about 20 minutes in the time set in the CCTV and in the real time. It has been contended that when on the call of Khimi Ram all assailants rushed outside the café to attack victim, Akhil is clearly visible rushing outside the café alongwith others to attack the victims. Further that this fact is also corroborated by eye witness Ritik, who had noticed Akhil inside the café and also on the spot, attacking the victim alongwith other assailants. Learned Additional Advocate General has submitted that absence of blood and DNA on the clothes of petitioner is not relevant as his presence is established through CCTV Footage as well as in the statements of Ritik and victim Yuma Devi and clothes produced by the petitioner are the same which the petitioner ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 9 Cr.M.P. (M) No. 190 of 2022 was wearing at the time of incident and thus clothes are sufficient to identify him in the CCTV Footage also.
14. Learned Additional Advocate General has further submitted that .
involvement of Chander Kiran @ Gaurav and Raj Kumar in the commission of offence has been certainly re-iterated by Yuma Devi in her statements recorded under Sections 161 and 164 Cr.P.C., wherein she has stated that though they were calling her husband at relevant point of time, but she has stated that they were doing so in order to inform the assailants about location of the victim couple and, therefore, she has alleged that they were also involved in commission of offence. Further that these persons have not been found present on the spot of incident on the basis of their location and other evidence on record, but this fact is of no help to the petitioner, because presence of petitioner has been substantiated, not only in statements of Ritik and Yuma Devi, but also through scientific evidence of CCTV Footage and, therefore, discrepancy or contradiction with respect to presence of Chander Kiran @ Gaurav and Raj Kumar, in the statement of Yuma Devi is of no effect with respect to involvement of petitioner and his presence on the spot substantiated by sufficient material evidence.
15. In statement of Yuma Devi, it has come that Ravinder Negi arrived on spot and saved them from assailants. Name of son of victim couple is Ravinder Negi. It has come on record that when SI Kushal Kumar, the then SHO, reached on the spot, he found that son of couple, namely, Ravinder was also present on the spot alongwith injured couple and injured were taken to the hospital with the help of son and QRT Police team in the vehicle of Police and in the list of witnesses relied upon by the prosecution, name of Ravinder Negi, S/o Paras Ram has been mentioned at Sr. No. 49, to be examined by State, mentioning as witness of spot as well as memos and identification of ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 10 Cr.M.P. (M) No. 190 of 2022 spot. Therefore, plea of petitioner that Ravinder Negi mentioned in the statement of Yuma Devi, recorded under Section 154 Cr.P.C. is not a witness in the list of witnesses, is contrary to record.
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16. Ravinder Negi in his statement has stated that he had come to Sewbag to withdraw some money from ATM and heard that at Charuru, his parents had been attacked by Khimi Ram, whereupon he took a lift on Motorcycle coming towards Kullu and reached near the couple and found their car in a damaged condition, stationed on the road and his mother, sitting on front seat of the vehicle, was crying loudly and at a distance behind the car, Kewlu and Shdhu were hitting his father with a danda and he ran towards his father with loud cries, whereupon both of them ran away towards Lugarbati and on the spot other persons were also present and thereafter he consoled his mother and thereafter a team of Police in Commando dress reached on the spot and then Police in Khaki dress also reached on the spot and their Officer, instead of waiting for Ambulance, shifted his parents to hospital in his Police Vehicle.
17. Petitioner is an accused in a heinous crime under Section 302 IPC, wherein cold blooded murder has been committed after planning it. It is not a case where a person had expired in a scuffle or on account of an incident taken place for sudden provocation. In this case, it appears that victims were traced, trapped and beaten badly and, injuries are sufficient to draw conclusion that intention of assailants was clear.
18. Taking into consideration submissions of learned counsel for the petitioner as well as learned Additional Advocate General and also material on record including statements of victim, MLCs of Victim, nature of injuries received by victims, possibility of mental state of Yuma Devi at the time of recording her statement under Section 154 Cr.P.C. and also statement of Ritik ::: Downloaded on - 20/06/2022 20:02:58 :::CIS 11 Cr.M.P. (M) No. 190 of 2022 and Ravinder Negi and conclusion of investigation but without commenting upon merits of the case, however, taking into consideration parameters and factors required to be taken into consideration at the time of considering bail .
application, I find that it is not a case where no prima facie case at all is made out against the petitioner. Therefore, I do not find it a fit case for enlarging the petitioner on bail at this stage. Accordingly, petition is dismissed.
(Vivek Singh Thakur), th 20 June, 2022 Judge.
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