Himachal Pradesh High Court
Bindu Ram vs State Of H.P on 7 January, 2022
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 7th DAY OF JANUARY, 2022
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BEFORE
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC. PETITION (MAIN) No. 2148 OF 2021
Between:-
BINDU RAM
S/O LATE SH.KANWAR SINGH,
RESIDENT OF VILLAGE BANDLI, P.O.
KANDO BHATNL, TEHSIL SHILLAI,
DISTRICT SIRMOUR, H.P. ...PETITIONER
(BY SH. DEEPAK KAUSHAL, ADVOCATE.)
AND
STATE OF H.P. ...RESPONDENT
(BY SH. RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL.)
CRIMINAL MISC. PETITION (MAIN) No. 2149 OF 2021
Between:-
RAJINDER SINGH ALIAS RAJU
S/O SH.GUMAN SINGH, RESIDENT OF
VILLAGE BANDLI, P.O. KANDO
BHATNOL, TEHSIL SHILLAI, DISTRICT
SIRMOUR, H.P. ...PETITIONER
(BY SH. DEEPAK KAUSHAL, ADVOCATE.)
AND
STATE OF H.P. ...RESPONDENT
(BY SH. RAJU RAM RAHI, DEPUTY
ADVOCATE GENERAL.)
Whether approved for reporting? Yes.
Reserved on: 20.12.2021
Decided on: 7.1.2022
These petitions coming on for pronouncement this day, the
Court passed the following:
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2 Cr.M.P. (M) No. 2148 and 2149 of 2021
ORDER
Petitioners herein are accused in case FIR No. 44 of 2020, .
dated 2.6.2020, registered under Sections 452, 147, 148, 149, 323, 325, 504, 302 of Indian Penal Code (IPC), in Police Station Shillai, District Sirmour, H.P.
2. As per status report, on 2.6.2020, telephonic information was received in Police Station, Shillai from Medical Officer, Community Health Centre (CHC), Shillai that a person injured in a quarrel had been brought for treatment in CHC. The said information was reduced into writing as GD No. 004, dated 2.6.2020 at 7:36 A.M. and Head Constable Naveen Kumar along with Constable Gaurav was sent to CHC Shillai, who in CHC had recorded statement of complainant Kiran, an eye witness, under Section 154 of the Code of Criminal Procedure (Cr.P.C.), wherein she had stated that on 31.5.2020, on path approaching cowshed of her Chacha Sasur (father-in-law) Chander Singh, cemented concrete was laid to stop the rainy water entering therein, and on 2.6.2020 at about 6:30 A.M., when she was working in kitchen, accused Rajinder, Kuldeep, Varinder, Amit, Balbir, Hitesh, Harvinder and Lal Singh came to their house and started questioning her father-in-law Bishan (now deceased), about reason for raising cemented edge of the path, whereupon her father-in-law had replied that it had been done to stop rainy water from entering the cowshed of Chander Singh.
Thereafter, accused persons started abusing her father-in-law and dragged him outside the house and started beating him. At that time petitioner Rajinder and Varinder were having iron rod and iron pipe, ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 3 Cr.M.P. (M) No. 2148 and 2149 of 2021 respectively and others were having dandas in their hands. Upon this her Taya Sasur Partap Singh and Chacha Sasur Chander Singh had .
come on spot to save her father-in-law Bishan. Accused persons had beaten them also and, thereafter, all accused left the place and in this incident her father-in-law Bishan received injuries on his head, ear and other parts of body and Taya Sasur Partap Singh in his head and hand and Chacha Sasur Chander Singh in his head. On the basis of statement of complainant, recorded at about 9:10 A.M., ruka was prepared and sent to the Police Station for registration of FIR and FIR was registered.
3. It is apparent from record produced by Police that during intervening time, co-accused Amit and Kuldeep had approached the Police Station at 8:53 A.M. and submitted an application to the SHO, stating therein that on 2.6.2020, Kuldeep Singh, on waking up at about 6-6:30 A.M., saw that in ancestral path approaching their house, with the help of wooden planks, concrete had been laid, resulting into closure of their path, which earlier was also obstructed by Chander Singh and his brother. So, Kuldeep Singh questioned Chander Singh about reason for doing so, who at that time was sowing crop in his field situated adjacent to house of Kuldeep Singh, whereupon Chander Singh started arguing with him and on hearing noise of altercation, his brother Bishan Singh, Pratap Singh, Swaran Singh and his nephews Dinesh alongwith Sunita, Kamla Devi, Nisha Devi, Seema Devi had also come to the spot near his house and started quarreling with him. Dinesh was having danda in his hand and he hit the head of Kuldeep Singh with the same from behind, ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 4 Cr.M.P. (M) No. 2148 and 2149 of 2021 whereupon Amit, brother of Kuldeep Singh, on hearing noise, had come to rescue Kuldeep Singh but he (Amit) was also pulled down by Chander .
Singh and Bishan Singh, causing him injuries in his leg and body.
According to Kuldeep Singh, persons namely Netar Singh, Giar Singh, Bansi, Vinod, Narender Singh etc. had come on the spot and had rescued them from Chander Singh etc. and in this incident Kuldeep Singh had received injuries on his head and his brother Amit had received injuries in legs and other parts of body. On the basis of this complaint of Kuldeep Singh, FIR No. 43 of 2020, dated 2.6.2020 was registered under Sections 147, 148, 149, 451, 323 and 341 IPC.
4. Injured Bishan (now deceased) was referred from CHC Shillai to Civil Hospital, Paonta Sahib. At about 1:30 P.M. telephonic information was received in Police station Shillai from Police Station Paonta Sahib that Bishan Singh had expired, whereupon Dy. S.P. Paonta Sahib had constituted a Special Investigating Team (SIT) for investigation of the case and Section 302 IPC was also added in the FIR.
5. During investigation, postmortem report of Bishan Singh was obtained, wherein it had been opined by the Doctors that most probable cause of death was head injury, leading to failure of vital function of brain and cardiac arrest.
6. Blood samples from the spot were also picked up and sent for chemical analysis. MLCs of injured Pratap Singh and Chander Singh were also received from the Medical Officer and injury of Chander Singh was found to be grievous in nature, whereas injury of Pratap Singh was ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 5 Cr.M.P. (M) No. 2148 and 2149 of 2021 simple in nature. On the basis of Medico Legal Certificate of Chander Singh, Section 325 IPC was also added in the case FIR.
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7. As per status report, during investigation, it has come that accused persons had entered the house of Bishan Singh with intention to attack and to beat him, therefore, Section 451 IPC was converted into Section 452 IPC.
8. As per status report, from the road till last house of the village, there is 4-5 feet wide ancestral public path, but near cowshed of Chander Singh, its width is about 3 feet and the house of petitioners-
accused is situated 15-20 feet away, whereas house of accused persons is situated on the other side of the path opposite to cowshed of complainant party and path on that portion is in the shape of stairs.
Earlier this path was katcha and now through Panchayat, under MMGPY Scheme, it has been cemented under the supervision of Up Pradhan Diwan Singh, Ward Member Kalpana and local resident accused Rajinder Singh on 30.5.2019 with tile flooring.
9. During investigation, as per prosecution story, it has been disclosed by complainant party that rainy water of this path was entering the cowshed of Chander Singh, whereupon Chander Singh etc., to stop the rainy water entering the cowshed, had cemented the side of the path adjacent to the wall of cowshed on 31.5.2020. It is further case of the prosecution that on 2.6.2020, when Shanta wife of Chander Singh was going to cowshed for milking at about 6:30 A.M., then accused-petitioner Rajinder Singh had met her on the public path near lintel of cowshed and had asked reason for laying concrete on the side of the path along ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 6 Cr.M.P. (M) No. 2148 and 2149 of 2021 the wall of cowshed, whereupon Shanta had explained that it had been done to stop rainy water entering the cowshed. Thereafter, accused .
persons conspired and dismantled/removed the concrete/cement laid by Chander Singh and then they went to the house of Bishan Singh and dragged him to the spot near lintel of cowshed and beat him with iron rod and pipe carried by petitioner Rajinder Singh and Varinder Singh, and with dandas carried by Kuldeep Singh, Balbir, Lal Singh, Harvinder, Amit Kumar and juvenile Hitesh Chaunan. Brothers of Bishan Singh were also beaten by them when they tried to save Bishan Singh from clutches of accused persons. Bishan Singh fell on the lintel unconscious after receiving injuries in his head and Pratap Singh and Chander Singh also received injuries and thereafter accused persons ran away from the spot.
10. Learned counsel for the petitioners has submitted that instead of accused persons, complainant party in present case is aggressor. To substantiate his plea, he has stated that accused Kuldeep and Amit had approached the Police Station immediately after the incident and had lodged FIR No. 43 of 2020 with respect to the incident which is prior to FIR lodged by complainant and, therefore, FIR lodged by complainant party in present case is an afterthought and counter blast to the FIR lodged by Kuldeep against them. Further, he submits that accused persons in present case never had any intention to kill Bishan Singh and as there was no intention to kill Bishan Singh, accused-petitioners are entitled for bail for absence of such intention ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 7 Cr.M.P. (M) No. 2148 and 2149 of 2021 despite the fact that unfortunately Bishan Singh had succumbed to injuries.
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11. According to learned counsel for petitioners, all male members of the family and minor Hitesh has also been implicated despite the fact that all the accused were not present on the spot.
12. Learned Additional Advocate General has submitted that accused-petitioners accompanying others, carrying dandas, iron rod and iron pipe in their hands, can be said having intention to commit murder as any prudent man can easily visualize that by hitting a person with dandas/iron rod in the head may cause death and, therefore, according to him, all accused were having knowledge of result of their action that by attacking with iron rod and iron pipe and dandas etc., it may cause death of the victim and, therefore, all of them have definitely joined each other with intention to kill the opposite party.
13. It is also canvassed by learned counsel for the petitioners that carrying a danda in hand does not amount carrying a lethal weapon in hand with intention to kill and further that injuries received by Bishan Singh also reflect that there was no intention to kill as it is reported in the postmortem report that deceased had received three injuries only and there was only one injury in his head. Thus, he further submits that had accused persons have intention to kill Bishan Singh, they would have not given only single blow on head, but would have beat him mercilessly and, therefore, petitioners are entitled for bail.
14. Incident in present case is an admitted fact, as cross FIR has also been lodged by co-accused Kuldeep Singh, alleging that he ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 8 Cr.M.P. (M) No. 2148 and 2149 of 2021 and Amit had received injuries. Though FIR No. 43 lodged by Kuldeep Singh has been registered at 8:30 A.M. and statement of complainant .
Kiran under Section 154 Cr.P.C. has been recorded at 9:10 A.M. and FIR No. 44 of 2020 on the basis of that statement has been registered lateron, but recording of statement of complainant and lodging of FIR in pursuance thereto at a time later than the registration of FIR No. 43 of 2020 is inconsequential as complainant party in present case, instead of approaching the Police had rushed the victim to the hospital for treatment, who was in serious condition and lateron succumbed to his injuries in the hospital at Paonta Sahib. Whereas, Kuldeep Singh and Amit instead of getting any treatment had gone to the Police Station to lodge the complaint prior in time than the complainant party in present case. Presence of Kuldeep Singh and Amit on the spot is also substantiated by contents of FIR No. 43 of 2020.
15. Petitioners had approached this Court earlier also.
Petitioner Bindu Ram had filed Cr.MP(M) No.2014/2020 alongwith other co-accused. Earlier Lal Singh, Balbir and Harvinder Chauhan were enlarged on bail, vide order dated 6.1.2021, passed by this Court in Cr.MP(M) No.1628/2020 and connected matters, but it was observed by the Court that at that stage balance of public interest was heavier than personal interest of Bindu Ram petitioner and, thus, he was not found entitled for bail at that stage. Petitioner Rajinder @ Raju had also filed bail application Cr.MP (M) No. 1380 of 2021, which was withdrawn by him on 8.9.2021.
::: Downloaded on - 31/01/2022 23:34:52 :::CIS 9 Cr.M.P. (M) No. 2148 and 2149 of 202116. Referring pronouncement of the Supreme Court of India in Jugut Ram v. State of Chhattisgarh, (2020) 9 SCC 520, learned .
counsel for the petitioners, has submitted that Damdas in hands cannot be considered to construe that petitioners were having intention or knowledge to kill the deceased, particularly for the reason that as per Medico-Legal Certificate (MLC) and Postmortem Report of deceased, there were no injuries, except three injuries on the body of deceased, out of which one injury was on head and other two injuries were left black eye and abrasions. He has further submitted that in case intention of the petitioners was to kill the deceased, then the deceased must have been beaten brutally, causing him multiple serious injuries but facts in present case are otherwise.
17. It is further submitted by the learned counsel for the petitioners that at the most it is a case of scuffle, wherein there was free fight between two parties in a land/path dispute, causing injuries to each other and, unfortunately, deceased has expired because of head injury.
18. It is further submitted by the learned counsel that there is discrepancy in the statements recorded under Section 164 Cr.P.C. and Section 161 Cr.P.C., which indicates that false story has been concocted to implicate the petitioners in this case.
19. Referring Ramesh Chander Singh v. High Court of Allahabad & another, (2007) 4 SCC 247, particularly Para-18 thereof, it is contended that when a co-accused has been granted bail by the High Court, then it would be justified to grant bail to another accused who is in Jail for more than one year.
::: Downloaded on - 31/01/2022 23:34:52 :::CIS 10 Cr.M.P. (M) No. 2148 and 2149 of 202120. It has further been submitted by the learned counsel that even if prosecution story is admitted to be correct, then also it is not a .
case of planned murder but death has occurred on account of assault by spur of moment, wherein a cross FIR has been lodged and who was the aggressor is yet to be determined by the Court, and intention to kill is yet to be established. Referring MLC and postmortem report of deceased, it has been contended that there was one injury on the body of deceased, which may have been caused in scuffle on falling or otherwise, but in any case, it could not be constituted that a group of persons attacks victim with intention to kill and cause only one injury and, therefore, learned counsel for the petitioners had contended that, case is at the most, even if prosecution case is considered to be true, is a case to be triable under Section 304 B IPC, where deceased has died unfortunately, but without any intention or manseria on the part of accused persons to kill him. He further submits that both sides have received injuries, cross FIRs have been lodged and it was unfortunate for the petitioners party that one of assailants, who are complainant in present case, has died.
21. It is submitted by the learned counsel for the petitioners that in cross FIR No.43 of 2020, challan has been presented in Court, wherein family members of complainant party are accused for beating petitioners herein and their companions, and case before the trial Court has been fixed for 15.9.2021, for presence of accused. Therefore, the learned counsel has contended that there are two parallel stories propounded by the prosecution agency by filing challans in both cases ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 11 Cr.M.P. (M) No. 2148 and 2149 of 2021 and, therefore, the petitioners are entitled for bail, as the veracity of prosecution story in present case is yet to be established.
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22. Learned counsel for the petitioners has further submitted that length of period spent in Jail, after rejection of earlier bail application, is also a changed circumstance, particularly when similarly situated co-accused have been enlarged on bail. He has further submitted that, in the circumstances of the present case, it cannot be stated that assault was pre-meditated, but the incident had taken place in heat of passion due to dispute with respect to path and both the parties had hit each other at the spur of the moment without any conspiracy, however, unfortunately, for death of deceased Bishan, petitioners are facing charges under Section 302 IPC, despite the fact that complainant party, in present case, was aggressor. Learned counsel for the petitioners has submitted that co-accused Amit and Kuldeep whose bail applications Cr.M.P. (M) Nos. 2017 and 2020 of 2020 were rejected vide judgment dated 6.1.2021, have been enlarged on bail vide judgment dated 13.9.2021 passed in Cr.M.P. (M) Nos. 789 and 1375 of 2021, whereas other co-accused have been enlarged on bail vide judgment dated 6.1.2021. It has been further contended that petitioner Bindu Ram was enlarged on interim bail on death of his grandfather Malu Ram in September, 2021 with certain condition and direction to surrender on expiry of currency of interim bail and the petitioner Bindu Ram during his enlargement on bail through his conduct has fortified his case for granting bail.
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petitioners may be enlarged on bail, at this stage.
24. Accordingly, the petitioners are ordered to be enlarged on bail on their furnishing personal bonds each in the sum of `50,000/- with one surety each in the like amount, to the satisfaction of trial Court and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to ensure the presence of the petitioners at the time of trial:-
(i) That the petitioners shall make themselves available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioners 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or suspected;
(v) that the petitioners shall not misuse their liberty in any manner;
(vi) that the petitioners shall not jump over the bail;
(vii) that they shall keep on informing about the change in address, landline number and/or mobile number, if any, for their availability to Police and/or during trial;
(viii) they shall not leave India without permission of the Court.
25. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioners, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be ::: Downloaded on - 31/01/2022 23:34:52 :::CIS 13 Cr.M.P. (M) No. 2148 and 2149 of 2021 open to the trial Court to impose any other or further condition on the petitioners as it may deem necessary in the interest of justice.
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26. In case the petitioners, enlarged on bail, violate any conditions imposed upon them, their bail shall be liable to be cancelled.
In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
27. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc.
Instructions/93-IV.7139 dated 18.03.2013.
28. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail applications.
29. The petitioners, enlarged on bail, are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, he may verify the order from the High Court website or otherwise.
The petitions stand disposed of in the aforesaid terms.
(Vivek Singh Thakur), th 7 January, 2022 Judge.
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