Himachal Pradesh High Court
S/O Sh. Bir Singh vs And on 11 March, 2022
Author: Jyotsna Rewal Dua
Bench: Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 11th DAY OF MARCH, 2022
BEFORE
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
.
CRIMINAL MISC. PETITION (MAIN)
No.299 of 2022
Between:-
DUNI CHAND
S/O SH. BIR SINGH,
AGED ABOUT 55 YEARS,
PRESENTLY IN JUDICIAL CUSTODY
AT MANDI, R/O VILLAGE LATAG,
P.O. RUMANI, SUB-TEHSIL CHEHARI,
DISTRICT MANDI (HP).
.....PETITIONER
(BY MR. MOHAN SHARMA, ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
.....RESPONDENT
(BY MR. NARENDER GULERIA, ADDITIONAL ADVOCATE
GENERAL WITH MR. RAM LAL THAKUR, ASSISTANT
ADVOCATE GENERAL
INSPECTOR SANJEEV KUMAR, SHO POLICE STATION
JANJEHLI, DISTRICT MANDI, H.P. PRESENT IN PERSON).
This petition coming on for order this day, the Court
passed the following:
ORDER
The petitioner was arrested on 03.11.2021 in FIR No.85/2021, dated 03.11.2021, registered under Section 302 of Indian Penal Code at Police Station Janjehli, District Mandi, ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 2 H.P.. He prays for bail in the instant petition preferred under Section 439 of Code of Criminal Procedure.
2. The prosecution case is that the FIR was registered .
on the basis of statement of one Mehar Chand, recorded on 03.11.2021 under Section 154 of Code of Criminal Procedure (Cr.P.C.). The gist of his statement is that:-
2(i) He was running a tea stall-cum-Dhaba near Varyogi, where he alongwith his wife also used to reside.
2(ii) On 02.11.2021, he had gone to Chhatri market. His wife was running the Dhaba in his absence. He arrived back in the Dhaba at around 6:00 p.m.. He had brought a liquor bottle with him. At about 6:30 p.m., his acquaintance Kishori Lal came to his Dhaba. Both of them started drinking liquor in a room in the Dhaba, facing water stream (Khad).
2(iii) At around 7:00 p.m., Dhuni Chand alias Joginder (bail petitioner), one Praveen (working as driver in a JCB) alongwith one other person also came to his Dhaba. Praveen was also carrying a liquor bottle with him. All of them started taking liquor in the aforementioned room. After sometime, the person accompanying the deceased left the Dhaba. Mehar Chand started dozing off on the bench in a room.
2(iv) At around 8:00 p.m., Mehar Chand was woken up by Kishori Lal, who informed him that the driver (Praveen) had been kicked by the bail petitioner near the door, as a result ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 3 Praveen had fallen down. The bail petitioner was also sitting in the room at that time. Immediately thereafter, bail petitioner went towards the Khad to look for the said driver, who statedly .
had fallen down from the door. Petitioner returned after some time and stated that he could not see the driver there and that he might have left for his quarter. Soon thereafter, Kishori Lal also went to his house. Mehar Chand again asked the bail petitioner to search for the JCB driver (Praveen). The bail petitioner and Mehar Chand's wife went towards the Khad. This time petitioner found the JCB driver lying in an unconscious state in the Khad. It was the bail petitioner, who carried the driver (Praveen) for medical treatment. The said JCB driver Praveen died later on.
On the basis of above statement, FIR was registered and investigation was carried out. The petitioner was arrested on 03.11.2021 at around 11.05 p.m.
3. As per status report, during investigation, petitioner statedly admitted taking liquor in Mehar Chand's Dhaba in the company of deceased Praveen, Kishori Lal and others. He stated that he and deceased Praveen had consumed a lot of liquor. They all were in the state of intoxication. Kishori Lal had informed him at around 8:00 p.m. that Praveen, who had gone to answer the call of nature, had not returned. Whereafter, he went to the Khad looking for him (Praveen). However, he could not locate ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 4 him at that time. On the asking of Mehar Chand, he again went to the Khad. This time, he was able to locate him (Praveen) lying unconscious in the stream. It was with great difficulty, he .
was able to extract Praveen from the Khad. He also tried to draw out water from his body. By involving various other persons, he carried Praveen for his medical treatment.
As per status report, about the clothes worn by the deceased at the time of death, RFSL Mandi reported 'unraveling of stitching with force'. Diatom test reported detection of few Diatoms in sternum bone, of deceased Praveen, which were insufficient to compare with diatoms detected in water sample taken from the water channel- Khad. The Department of Forensic Medicines, IGMC, Shimla reported that the 'possibility of post immersion syndrome (a type of atypical drowning) cannot be ruled out as a cause of death'.
4. Learned counsel for the petitioner submitted that the petitioner has been falsely implicated in the FIR. The events have not been correctly described in the FIR in question. That at the place of incident, five people were sitting inside the Dhaba.
All the five persons were enjoying themselves. Deceased Praveen left petitioner's company and sat in another cabin. From that cabin, the place of occurrence cannot be seen. The place from where the kick is alleged to have been inflicted is more than16- 18 feet away from the place from where the deceased had ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 5 allegedly fallen down. It was the petitioner, who made efforts to carry the deceased for medical treatment. There was no motive for the petitioner to kill Praveen. Deceased and the petitioner .
were enjoying very cordial relations.
Learned Additional Advocate General opposed the bail on the ground that the petitioner has been accused of a grave offence under Section 302 of Indian Penal Code. According to learned Additional Advocate General, eye-witness Kishori Lal had stated during investigation that it was the bail petitioner, who had kicked Praveen and that as a result of force, Praveen fell down and died.
5. I have heard learned counsel for the parties and have gone through the documents as well as record of the case with utmost care.
The petitioner is facing accusation under Section 302 of Indian Penal Code. From the investigation carried out by the prosecution, at this stage, prima facie it appears that the petitioner, Praveen, Mehar Chand, Kishori Lal and one another person were all taking liquor in the tea stall-cum-Dhaba belonging to Mehar Chand. They all were intoxicated. It appears that Mehar Chand did not witness the incident. It was only Kishori Lal, who alleged that the petitioner had kicked Praveen and as a result of force used, Praveen fell down through the door.
Whether the bail petitioner actually kicked Praveen, ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 6 whether Praveen fell from the door because of force of the kick alleged to have been given to him by the petitioner and whether his death resulted from said impact etc., are the factors to be .
appreciated during trial on consideration of the evidence produced by the parties in the trial. At this stage, the conduct of the petitioner also becomes material. It was he, who had gone twice to look for the deceased in the Khad. It was the petitioner, who found Praveen lying unconscious in the Khad. It was the petitioner, who made frantic efforts, involved other persons for Praveen's medical treatment. No motive has been imputed by the prosecution at this stage for the bail petitioner to cause Praveen's death. RFSL Mandi has reported that immersion syndrome (a type of atypical drowning) could also be a cause of death of Praveen. The status report does not give any criminal background of the petitioner. The bail petition is fifty-five years of age and is permanent resident of the State. Investigation in the matter is almost complete.
In the facts and circumstances of the case, considering the mode and manner of commission of alleged offence, the investigation carried out thus far in the matter, the petitioner has made out a case for his enlargement on bail.
Accordingly, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.75,000/- (Rupees Seventy Five ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 7 Thousand only) with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-
.
(i). The petitioner shall join and cooperate the investigation of the case as and when called for by the Investigating Officer in accordance with law.
(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.
(iii). The petitioner will not leave India without prior permission of the Court.
(iv). The petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.
(v). In case the petitioner is put to trial, then he shall attend the trial on every hearing, unless exempted in accordance with law.
(vi). Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.
In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter. Learned Trial Court ::: Downloaded on - 11/03/2022 20:13:40 :::CIS 8 shall decide the matter without being influenced by any of the observations made hereinabove.
With the aforesaid observations, the present petition .
stands disposed of, so also the pending miscellaneous application(s), if any.
Jyotsna Rewal Dua Judge March 11, 2022 R.Atal ::: Downloaded on - 11/03/2022 20:13:40 :::CIS