Himachal Pradesh High Court
Bhupesh vs State Of Himachal Pradesh on 4 January, 2023
Author: Sandeep Sharma
Bench: Sandeep Sharma
IN THE HIGH COURT OF HIMACHAL PRADESH AT
SHIMLA
.
Cr. MP (M) No. 2816 and 2817 of 2022
Date of Decision: 4.1.2023
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1. Cr.MP(M) No.2816 of 2022
Bhupesh ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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2. Cr.MP(M) No.2816 of 2022
Abhishek ...Petitioner
Versus
State of Himachal Pradesh ...Respondent
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Coram:
The Hon'ble Mr. Justice Sandeep Sharma, Judge.
Whether approved for reporting?1
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For the Petitioner Mr. Ajay Kochhar, Senior
Advocate with Ms. Avni Kochhar
and Mr. Abhinav Mehta,
Advocates.
For the Respondent Mr. Rajan Kahol and Mr. B.C.
Verma, Additional Advocates
General.
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Sandeep Sharma, J. (Oral)
Bail petitioners, namely Bhupesh and Abhishek, who are behind the bars since 13/15.10.2022, have approached this Court in the instant proceedings filed under Section 439 Cr.P.C, for grant of regular bail in case FIR No. 1 Whether reporters of the local papers may be allowed to see the judgment?
::: Downloaded on - 04/01/2023 20:34:43 :::CIS 282 of 2022, dated 13.10.2022, under Sections 302, 341, 323, 147, 148, 149, 506, read with Section 34 of IPC, .
registered at Police Station Jhakri, District Shimla, H.P.
2. Pursuant to the notices issued in the instant bail petitions, respondent-State has filed status report and SI Sher Singh Negi, has come present alongwith the record.
Record perused and returned.
3. Close scrutiny of the status report/record reveals that on 13.10.2022, complainant namely Sahil Negi lodged complaint at PS Jhakri, District Shimla, alleging therein that on 12.10.2022, he alongwith Mahender Singh as well as his friends had gathered at Rampur for celebration of his birthday. He alleged that at around 11.00 PM, they all went to Mahesh Hotel, Jhakri for having their dinner. However, when they reached Mahesh Hotel, security guard refused to give them entry. He alleged that owner of Mahesh Hotel Sh.
Rahul Dev Sharma and his nephew Ashish Sharma started hurling abuses and forcibly pulled the key of vehicle of Mahender. He alleged that when they asked above named persons to return the key, owner of the Mahesh Hotel alongwith his staffs, who were carrying dandas in their hands, gave them beatings. He alleged that though all the ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 3 persons, save and except Mahender, succeeded in fleeing from the spot, to whom subsequently owner of the Mahesh .
Hotel, Sh. Rahul Dev Sharma and his nephew Ashish Sharma alongwith other staff members gave beatings.
Complainant alleged that though they tried to give telephonic call to Mahender but the same was unattended.
Complainant alleged that he alongwith other friends came back on the spot to find out whereabouts of the Mahender, but by that time many people had gathered on the spot. He alleged that being afraid of the people gathered on the spot, they went to police Station, Jhakri and thereafter reached on the spot with the police. Complainant alleged that accused, named hereinabove, gave them merciless beatings and as such, appropriate action in accordance with law be taken against them. Police after having completed necessary codal formalities took complainant as well as other injured persons to the medical officer MGMSC, Khaneri, for medical examination. Since injured Mahender had suffered various injuries on his body, but unfortunately on his way to IGMC, he succumbed to his injuries. In the aforesaid background, police though initially arrested owner of Mahesh Hotel, Rahul Dev Sharma and his nephew Ashish Sharma, brother ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 4 Lal Chand, wife Amita Sharma, Naresh Verma, Bablu, Ritik and Bhupesh i.e. bail petitioner, but subsequently on the .
next day after having recorded the statements of eye witnesses namely Satish and Shubham it also arrested other persons namely, Ashwani, Ankesh, Rishi, Rakesh Kumar, Ashwani, Mohan Lal and Abhishek i.e. bail petitioner. Persons namely Amita Sharma, Rishi Sharma, Ankesh Kumar, Ashwani, Rakesh Kumar, Ritik and Mohan Lal, already stand enlarged on bail vide order dated 20.12.20220, passed by this Court in Cr.MP(M) Nos. 2542, 2562, 2563, 2564, 2565, 2746 and 2750 of 2022. Since investigation in the case is complete and nothing remains to be recovered from the bail petitioners, they have approached this Court in the instant proceedings for grant of regular bail.
4. Mr. Ajay Kochhar, learned Senior counsel duly assisted by Ms. Avni Kochhar and Mr. Abhinav Mehta, Advocates representing the bail petitioners, vehemently argued that bare perusal of material collected on record by the Investigating Agency nowhere suggests prima-facie case, if any, against the bail petitioners under Section 302 of IPC.
While making this Court peruse statements of independent ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 5 witnesses recorded under Sections 154 Cr.P.C., learned senior counsel representing the petitioners argued that .
none of these witnesses specifically named bail petitioners herein, rather these witnesses stated that complainant Sahil alongwith other injured persons including deceased Mahender were gathered infront of Mahesh hotel in drunken condition and they were making noises. Learned counsel representing ther petitioners submits that it is quite apparent from the statements of aforesaid witnesses that at first instance complainant alongwith other persons including the deceased Mahender tried to forcibly enter into the hotel, which was closed at that time and when they were stopped by security guard, they started quarreling, as a result of which, owner was forced to come out of the hotel.
He submitted hat it has specifically come in the statements of aforesaid witnesses that though, majority of persons succeeded in fleeing from the spot, but deceased Mahender was caught by the staff and was made to sit in the hotel, so that he is handed over to police. Learned counsel representing the petitioners further submits that it has specifically come in the statement of aforesaid independent witnesses that deceased Mahender also succeeded in fleeing ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 6 from the spot, but he was chased by the accused namely, Rahul, Lal Chand, Amita Sharma, Gaurav and accused .
Ashish hit him with something, as a result of which, he fell down on the ground and thereafter Lal Chand, Rahul, Ashish and Amita Sharma gave him beatings with fist and sticks. He states that though these witnesses stated that other staff members had also reached on the spot, but they never stated that they also gave beatings. Learned counsel representing the petitioners contends that perusal of CCTV footage clearly reveals that none of the bail petitioners can be seen giving beatings to the deceased, who at that time was lying on the road. Lastly learned counsel for the petitioners submits that no recovery, if any, of any kind of weapon ever came to be effected by the bail petitioners and as such, it would be too premature to conclude guilt, if any, of the bail petitioners. He further submits that neither there was any motive nor any kind of intention to kill the deceased Mahender, rather all the accused, named in the FIR, came out of the hotel with a view to protect their property from the complainant and his friends
5. While refuting the aforesaid prayer made by the petitioners for grant of bail and admitting factum with ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 7 regard to completion of investigation, Mr. Rajan Kahol, learned Additional Advocate General, submits that though .
nothing remains to be recovered from the bail petitioners, but keeping in view gravity of the offence alleged to have been committed by them, they do not deserve any leniency and need to be dealt with severely. While making this Court peruse statements of independent witnesses recorded by the police under r Section 161 Cr.P.C, learned Additional Advocate General contends that there is overwhelming evidence suggestive of fact that bail petitioners were also part of unlawful assembly and they all ran behind deceased Mahender with an intention to kill him and as such, it cannot be said that they have been falsely implicated. While making this Court peruse postmortem report of deceased Mahender, learned Additional Advocate General states that large number of injuries were found on the body of deceased Mahender, especially on head and as such, it can be easily inferred that he was given beating by many persons named in the FIR. Lastly, learned Additional Advocate General submits that question with regard to common object and intention, if any, to kill is not to be seen at this stage, rather that is matter of trial and shall be determined by the trial ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 8 Court on the basis of totality of evidence collected on record by the prosecution. He submits that since there is .
overwhelming evidence suggestive of the fact that bail petitioners also gave beatings to the deceased, especially statements given by the independent witnesses that entire family of owner of Mahesh Hotel alongwith staff had given beatings to the deceased Mahender, it may not be in the interest of justice to enlarge bail petitioners on bail, who in the event of their being enlarged on bail may not only flee from justice but may tamper with the prosecution evidence.
6. Having heard learned counsel for the parties and perused material available on record, this Court finds that on the date of alleged incident, complainant alongwith other injured including deceased Mahender had come to Mahesh Hotel after 11.00 PM for having their dinner but by that time Mahesh Hotel had closed. Since complainant alongwith his friends forcibly tried to enter in the hotel, security guard stopped them but once they started creating ruckus, owner of the hotel came down and allegedly, some altercation took place between complainant party and Ashish son of Lal Chand owner of Mahesh Hotel. Since complainant party and Ashish allegedly pulled key from the vehicle of deceased ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 9 Mahender and thereafter fight was started between complainant party and accused, named in the FIR.
.
Complainant party save and except deceased Mahender after having seen the staff coming on the spot, succeeded in fleeing from the spot, but deceased Mahender, whose car was standing infront of Mahesh hotel, was caught by accused named in the FIR, but once he also attempted to run away from the spot, persons namely Ashish, Lal Chand, Rahul, Amita Sharma and Gaurav ran behind him carrying dandas/sticks in their hands. Independent witnesses namely, Shubham and Satish, who after having heard noise reached on the spot, under Section 161 Cr.P.C deposed to the police that firstly complainant party created ruckus infront of hotel and thereafter when they were not leaving the spot, owner of the hotel namely, Ashish alongwith other staff started quarreling and thereafter complainant as well as other injured save and except Mahender succeeded in fleeing from the spot. Aforesaid independent witnesses deposed that though at first instance Mahender was also caught by staff of Mahesh hotel but he also succeeded in fleeing. These witnesses stated that owner of the hotel Rahul, Lal Chand and Amita Sharma chased Mahender and ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 10 allegedly accused Ashish gave blow of something to a boy, who fell on the ground and thereafter owner of the Hotel .
Rahul, Lal Chand, Ashish and Amita gave him beatings with sticks and kicks. This Court after having carefully perused the statements of aforesaid independent witnesses is persuaded to agree with Sh. Kochhar, learned Sr. Advocate that though entire staff of Mahesh Hotel had reached on the spot but these witnesses nowhere stated r that save and except persons namely, Lal Chand, Rahul, Ashish and Amita Sharma gave beatings to the boy lying on the road i.e. deceased Mahender. Shubham in his statement stated that one person namely, Naresh, who was carrying iron road in his hand caught Mahender from his neck and asked him about his credential but at that time Mahender was in unconscious condition. Though, it is quite apparent from the record that on the alleged date of incident altercation/ quarrel took place interse complainant party and owners of the Mahesh Hotel, but there appears to be merit in the contention of learned counsel for the petitioners that there is no evidence that save and except persons namely, Lal Chand, Rahul, Ashish, Amita Sharma and Naresh, other persons named in the FIR, gave beatings to deceased ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 11 Mahender and as such, there is no occasion, if any, to detain other persons, who otherwise being staff members .
though came on the spot but never gave any kind of beatings to the deceased.
7. While considering the bail petitions having been filed by the bail petitioners in Amita Sharma, Rishi Sharma, Ankesh Kumar, Ashwani , Rakesh Kumar, Ritik and Mohan Lal, this court had an occasion to watch the CCTV footage made available to this Court, perusal whereof revealed that one person is being chased by few persons including one lady and after some distance that person fell on the ground.
However, CCTV footage nowhere suggests that all the accused, named in the FIR, were giving beatings while deceased Mahender was lying on the road, rather one or two persons including one lady can be seen hitting person lying on the road with danda/stick and as such, it would be too premature at this stage to conclude the guilt of the bail petitioners, who were present on the spot being staff of the hotel.
8. Though, aforesaid aspect of the matter is to be decided by the court below in totality of facts and circumstances as well as evidence collected on record by the ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 12 prosecution, but definitely for the reasons stated herein above, coupled with the statements of independent .
witnesses namely Shubham and Satish adduced on record, this court finds force in the submission of learned counsel representing the bail petitioners that like other co-accused, petitioners also deserve to be enlarged on bail, especially, when there is no evidence available on record to suggest that they had also given beatings, if any, to the accused.
9. No doubt, after having heard noises or ruckus being created by the complainant party, staff members came out from the hotel and they with a view to protect the property of the hotel may have shown some kind of fear to the complainant party but that may not be sufficient to conclude guilt, if any, of such persons muchless under Section 302 of IPC. Apart from above, this Court finds that no weapon of any kind ever came to be recovered from the petitioners, rather recovery, if any, in the case at hand has been affected from other accused namely, Lal Chand, Ashish, Rahul Dev, Bablu and Naresh, who are already behind the bars and have not applied for the bail.
10. Learned Additional Advocate General vehemently argued that gravity of offence alleged to have been ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 13 committed by accused is required to be taken into consideration while considering their prayer for grant of bail, .
but now it is well settled that while deciding the question of grant of bail or refusal of bail, other factors such as the nature of evidence, the part played by the accused in the commission of offence and the likelihood of the accused absconding or tampering with the prosecution evidence are also required to be taken into account. No doubt, offence punishable under Section 302 of IPC is grave offence for which extreme penalty of death has been provided in law, however, mere gravity of offence and the severity of punishment is no ground for rejection of bail. In this regard, reliance is placed upon the judgment passed by this Court in Jeet Ram versus State of H.P., Latest HLJ 2003(HP) 23, wherein it has been held as under:-
"7. As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a 'Draft'. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelt ing of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co- accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 14 lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149, IPC, In the facts of the ease, is a debatable question.
.
8. In Thakar Singh v. State of Punjab, 1969 Cur LJ 810 (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh 10 caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under :
"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no r such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
9. In Jaspal Singh v. State of Haryana, 1986 (2) Recent CR 582 (2) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise :
::: Downloaded on - 04/01/2023 20:34:43 :::CIS 15"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause .
injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."
10. In Kuldip Singh v. State of Punjab, 1994 (3) Rec Cri R 137 : (1994 Cri LJ 2201) (SC) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave 'Lathi' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon'ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307, I.P.C. is made out against Kuldip Singh who caused 11 such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the 'Lathi' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured."
"12.There is no doubt that offence punishable under Section 302, I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the 6f-fence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account".
11. Though cases at hand are to be decided by the court below in the totality of evidence collected on record by the investigating agency, but having taken note of the aforesaid aspect of the matter, there appears to be no reason for this Court to let the bail petitioners incarcerate in jail for an indefinite period. Hon'ble Apex Court as well as ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 16 this Court have held in catena of cases that one is deemed to be innocent till the time his/her guilt is not proved, in .
accordance with law and as such, this Court sees no reason to let bail petitioners incarcerate in jail for an indefinite period during trial. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice or may again indulge in such activities, can be best met by putting bail petitioners to stringent conditions.
12. Hon'ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr decided on 6.2.2018 has held that freedom of an individual cannot be curtailed for indefinite period, especially when his/her guilt is yet to be proved. It has been further held by the Hon'ble Apex Court in the aforesaid judgment that a person is believed to be innocent until found guilty.
13. Hon'ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49 has held that gravity alone cannot be a decisive ground to deny bail, rather competing factors are required to be balanced by the court while exercising its discretion. It ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 17 has been repeatedly held by the Hon'ble Apex Court that object of bail is to secure the appearance of the accused .
person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative.
14. In Manoranjana Sinh alias Gupta versus CBI, (2017) 5 SCC 218, Hon'ble Apex Court has held that the object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise also, normal rule is of bail and not jail.
Apart from above, Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment, which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.
15. The Apex Court in Prasanta Kumar Sarkar versus Ashis Chatterjee and another (2010) 14 SCC 496, has laid down various principles to be kept in mind, while deciding petition for bail viz. prima facie case, nature and gravity of accusation, punishment involved, apprehension of repetition of offence and witnesses being influenced.
::: Downloaded on - 04/01/2023 20:34:43 :::CIS 1816. In view of above, bail petitioners have carved out a case for themselves, as such, present petitions are .
allowed. Bail petitioners are ordered to be enlarged on bail, subject to their furnishing bail bonds in the sum of Rs.2.00 Lakh each with two local sureties in the like amount each, to the satisfaction of the learned trial Court, besides the following conditions:
(a) They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;
(b) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
(c) They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and
(d) They shall not leave the territory of India without the prior permission of the Court.
17. It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.
18. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and ::: Downloaded on - 04/01/2023 20:34:43 :::CIS 19 shall remain confined to the disposal of these petitions alone. The petitions stand accordingly disposed of.
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A downloaded copy of this order shall be accepted by the learned trial Court, while accepting the bail bonds from the petitioner and in case, said court intends to ascertain the veracity of the downloaded copy of order presented to it, same may be ascertained from the official website of this Court.
r (Sandeep Sharma)
Judge
January 04, 2023
manjit
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