Himachal Pradesh High Court
Saleem vs State Of Himachal Pradesh on 22 November, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
Cr.M.P(M) No. 1401 of 2018
Decided on : 21.11.2018
.
Saleem .....Petitioner.
Versus
State of Himachal Pradesh ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1yes
For the petitioner: Mr. N.S. Chandel, Advocate.
For the respondent: Mr. Hemant Vaid Additional
Advocate General with Mr. Vikrant
Chandel, and Mr. Yudhvir Singh
Thakur, Dy. A.Gs. for the
respondent-State.
Sureshwar Thakur, J (oral)
The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., wherein he seeks indulgence, of his being ordered to be released from judicial custody, whereat he is extantly lodged, for, his allegedly committing offences, constituted under Section 302 and under Section 201 of IPC, under FIR No.85 of 2017, registered with Police Station, Bharmour, District Chamba, H.P.
2. The fateful occurrence is alleged to take place on 20.9.2017. The inquest report prepared in quick spontaneity thereof, makes an unfoldment, qua the demise of the afore 1 Whether reporters of the local papers may be allowed to see the judgment?
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deceased, being a sequel, of his, suddenly falling onto the spill .
channel. In the post-mortem report also prepared in quick spontaneity, vis-à-vis, the fateful incident, the reasons' qua the afore demise, is ascribed, to be in result of cardio-pulmonary arrest, leading to death. One Karam Deen, a close relative of the deceased, in his signatured statement, recorded instantaneously, vis-à-vis, the fateful occurrence, has made disclosure(s), therein (a) that at the relevant time, owing to tripping, of, the electricity, hence water entering onto the spill-
way,and, for ascertaining the afore factum, the deceased hence moving onwards, upto a distance of 300 meters, and, his not returning to the place, whereat the afore Karam Deen was positioned, b) also he has made disclosures therein qua the deceased owing to darkness, prevailing in the region concerned, hence accordingly slipping, onto the spill-way, and c), AND his hence meteing his end. It is stated by the Investigating Officer concerned, that, the afore disclosure(s), are in consonance with the deployment(s), of the afore workmen, at, the site concerned.
3. Be that as it may, after a month elapsing therefrom, the afore Karam Deen, a close relative of the deceased, and, who was for the afore reasons, last in the company of the deceased, made an unsigned statement, under Section 161 Cr. P.C., ::: Downloaded on - 24/11/2018 22:57:18 :::HCHP ...3...
before the Investigating Officer concerned, (i) whereunder he .
unfolded qua the bail-applicant extra-judicially confessing his guilt to him. The afore rendered statement, would, carry weight only upon i) the bail-applicant apparently holding the closest intimacy, with, him, and, hencehis taking to confide in the afore Karam Deen, However, the afore factum is negatived by the factum, qua a) the deceased and the afore Karam Deen, rather being closely related to each other, b) the thesis propounded in the subsequently recorded statement of Karam Deen, qua, at the relevant time, the bail-applicant and the deceased, being deployed to perform, the, apt duties, at the relevant site, standing negatived by the afore rendered statement(s) before this Court, by the Investigating Officer concerned,(c) with voicing(s) that at the time of the fateful occurrence, and, at the time when the body of the deceased stood recovered, from the relevant site, rather both the bail-
applicant, and, the deceased, being thereat deployed, to, render their duties.
4. In aftermath, it appears, that, the subsequently recorded statement, of, the afore Karam Deen, under Section 161 Cr. P.C., is, grossly contradictorily vis-à-vis, the signed statement, made by the afore Karam Deen, in quick ::: Downloaded on - 24/11/2018 22:57:18 :::HCHP ...4...
spontaneity, qua the fateful day, and, hence, is a sequel, of, a .
sheer invention and, concoction, of the Investigating Officer concerned, (i) and, corrections in consonance therewith, as made in the post-mortem report, and, scribed therein, on 13.1.2018, Are, also merely made, to render corroboration, to the subsequently rendered afore statement, by the afore Karam Deen. Lastly, the learned Additional Advocate General has contended with vigor (ii) that if the deceased had suddenly fallen onto the spill way, hence there was necessity for the post-
mortem, making reflections, qua the lungs of the deceased, being filled with water, (iii) whereas, the afore reflections being not borne therein, thereupon the subsequently rendered statement by the afore Karam Deen, hence carrying tenacity.
However, the afore submission is grossly flawed, as the Investigating Officer, has stated before this Court, that the level of the water existing, at the relevant time, in the channel concerned, rather being minimal (iv) and wherefrom this Court draws an inference that hence there was no possibility, of, the deceaseds' body submerging therewithin, nor hence water entering onto his lungs, (v) besides when the Investigating Officer has also stated before this Court, that there was no blockade in the spill-way, for hence precluding the body of the ::: Downloaded on - 24/11/2018 22:57:18 :::HCHP ...5...
deceased, , to, rather enter onto the channel, (vi) thereupon .
also, it cannot be concluded, that, if any tenacity is assumed, vis-à-vis, the subsequently recorded opinion in the post-
mortem, qua the deceased suffering, demise owing to the afore reflections, and, their being, in also consonance with the subsequently rendered statement of karam Deen, (i) thereupon also, no further conclusion can be erected, that, the body of the deceased was not passable, from, the spill-way hence onto the channel, wherefrom, it was ultimately recovered, nor it can be concluded, that the occurrence, of, the body of the deceased, at the place, of, its recovery, being a sequel of the bail-appicant, after inflicting ante-mortem injuries, upon the deceaseds' person, his, throwing the deceaseds' body, onto, the place wherefrom, hence it stood discovered.
4. In aftermath, this Court is fortifyingly constrained, to, make an order that the bail-applicant shall be released from judicial custody, subject to compliance, with, the hereinafter extracted conditions:-
i) That he shall furnish personal bond in the sum of Rs. 2,00,000/-, with two sureties, in the like amount, to the satisfaction of the trial Court concerned.
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ii) That he shall join the investigation, as and when .
required by the Investigating agency.
iii) That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the
iv) to Court or to the Police.
That he shall not leave India without the prior permission of the Court.
v) That he shall deposit his passports, if any, with the Police Station, concerned.
vi) That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody.
5. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
21.11.2018 (kalpana) (Sureshwar Thakur), Judge ::: Downloaded on - 24/11/2018 22:57:18 :::HCHP