Himachal Pradesh High Court
Inder Dev vs State Of Himachal Pradesh on 11 December, 2023
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
Cr.M.P. (M) No. 2747 of 2023
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Date of decision: 11.12.2023
Inder Dev. ...Petitioner.
Versus
State of Himachal Pradesh. ...Respondent.
of
Coram
The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
Whether approved for reporting?1 Yes
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For the Petitioner. Ms.Kanta Thakur, Advocate.
For the Respondent: Mr.Manoj Chauhan, Additional Advocate
General.
Vivek Singh Thakur, Judge (Oral)
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).
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. Petitioner has also placed on record Pen Drive with claim that it contained CCTV Footage relied upon by the State with further submission that said CCTV Footage shall demonstrate that petitioner was not involved in commission of offence and thus entitled for bail.
Whether the reporters of the local papers may be allowed to see the Judgment? Yes ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 2 Cr.MP (M) No. 2747 of 2023
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 of 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 rt 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 the spot. Son of victim Yuma Devi and Paras Ram, 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 wife of Paras Ram was crying due to pains. SI Kushal Kumar instead of waiting for Ambulance directed QRT Team and son of victims to shift injured to the Hospital in his Police vehicle. 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.
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 ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 3 Cr.MP (M) No. 2747 of 2023 communication dated 26.8.2021 issued by Superintendent of Police, Kullu, investigation was transferred to Additional Superintendent of Police, Kullu.
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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.
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3. Swelling both arms-blunt injury.
4. Swelling distal phalange both arms-blunt injury.
5. Open wound left thumb blunt injury.
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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 another 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 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 ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 4 Cr.MP (M) No. 2747 of 2023 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 of dispute 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 rt 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 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 followed 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 withheld 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 retaliate. By that time, two Policemen also came, one of them caught her husband with help of Sidhu, and Khimi Ram kept on beating her husband. Yuma Devi hit 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 ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 5 Cr.MP (M) No. 2747 of 2023 Vijay beat her husband. With fist blow of Khimi Ram, her front tooth was dislocated. Thereafter Police came and scuffle ended and they went home.
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8. Yuma Devi has further stated that 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 of 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 rt 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 was 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. 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 also beaten on the seat of the 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. Apart from breaking her arms and leg, they torn her clothes and molested her.
::: Downloaded on - 11/12/2023 20:33:42 :::CIS 6 Cr.MP (M) No. 2747 of 20239. Yuma Devi has narrated different role of accused persons in detail, in her statement recorded under Section 161 Cr.P.C. as well as in .
statement recorded on oath before Judicial Magistrate Fist Class.
10. 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 of 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, rt 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 has stated that Akhil was also involved in the attack.
11. Learned counsel for the petitioner, referring status report, CCTV footage and certain other facts, has contended that there is no material on record to connect the petitioner in commission of offence and, therefore, he is entitled for bail.
12. Learned counsel for the petitioner has submitted that petitioner was arrested on 14.06.2021 and since then he is in judicial custody whereas he has been arrayed as an accused in present case without any incriminating evidence or material against him and he has not been named by any witness, including complainant Yuma Devi, as assailant in the incident. Further that, though he has been noticed as present in the Café in CCTV footage, but he was not sitting with main accused Khimi Ram and others who had conspired and planned to attack deceased Paras Ram and his wife complainant Yuma Devi, but he was sitting inside the Café and he was not among the assailants, but had gone outside the Café out of curiosity like other passersby of the Café and not even a single witness has named ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 7 Cr.MP (M) No. 2747 of 2023 him as an accused or a person involved in attacking the victims and, therefore, going to Café alongwith three other persons and walking hurriedly .
towards the spot of incident cannot be treated sufficient evidence to implicate the petitioner for commission of offence under Section 302 IPC.
Further that, petitioner has not been found alongwith main accused persons, who have been named by the witnesses or have been noticed in the CCTV of footage actively participating in the incident and, therefore, he is entitled for bail.
13. Learned counsel for the petitioner has submitted that clothes of rt petitioner Inder Dev, alleged to have been worn by him on the day of incident, were sent to RFSL for examination and as per report of RFSFL, no blood was detected on his clothes which substantiates that petitioner was not accompanying attacking party.
14. It has further been submitted by learned counsel for the petitioner that 38 years old petitioner is a married person having two minor children and old ailing bedridden mother because his six brothers are living separately and are not looking after his family and mother, and petitioner is sole bread earner for all of them and, therefore, petitioner, who has been implicated falsely despite being innocent and not connected in commission of offence in any manner, is entitled for bail.
15. Learned Additional Advocate General has submitted that petitioner Inder Dev, in CCTV footage, has been noticed coming on the spot on 25.08.2021 at 3.50.51 p.m., [(as per Camera time which was lacking behind 22 minutes 32 seconds from Indian Standard Time (IST)], alongwith three other accused persons namely Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh and he has been noticed entering in Café after one minute, and thereafter till occurrence of the incident he was present in the Café alongwith other accused persons and was sitting in a ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 8 Cr.MP (M) No. 2747 of 2023 Shed located below the lawn of the Café. At 6.40.28 p.m. (time according to CCTV), all accused persons came out from the gate on signal of main .
accused Khimi Ram and attacked victims and at 6.43.06 p.m. and petitioner was noticed running towards spot of incident from the out gate. He has been identified in CCTV footage by independent witnesses and Regional Forensic Science Laboratory (RFSL) Dharamshala has also reported that of petitioner was there in CCTV footage. As per Tower location of mobile of petitioner Inder Dev, he was found present on the spot of occurrence.
16. Learned Additional Advocate General has submitted that when rt on the call of Khimi Ram all assailants rushed outside the Café to attack victim, petitioner is clearly visible rushing outside the Café alongwith others, including Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh.
17. Learned Additional Advocate General has submitted that Taxi driver Hem Raj alias Anku has also substantiated involvement of petitioner in the offence by stating that on 25.08.2022 Chaman Singh alias Shyama, Kamal Singh alias Tiger alongwith two other persons, not known to him, were dropped by him by his Taxi at Café Water Edge. Learned Additional Advocate General has further submitted that during 24.08.2022 and 25.08.2022 petitioner Inder Dev and Room Singh had conversation on mobile for ten times.
18. It has further been submitted by learned Additional Advocate General that plea taken on behalf of the petitioner, that he was not among the main accused involved in commission of offence, is not correct as Chaman Singh alias Shyama, Kamal Singh alias Tiger and Room Singh have been named by eye witness Ritik as persons hitting the car with sticks and beating the victims. Further that, eye witness Rajan Sharma has also named Chaman Singh alias Shyama, Kamal Singh alias Tiger as active ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 9 Cr.MP (M) No. 2747 of 2023 participants in conspiracy and attacking the victims. Therefore, it has been submitted that absence of name of the petitioner in the statements and also .
absence of blood on his clothes cannot be made basis to claim that petitioner was not involved in commission of offence in furtherance of common intention of all accused persons as his presence has been established through CCTV footage and he has been noticed running of towards place of incident alongwith other co-accused with whom he had come to the Café.
19. Learned counsel for the petitioner has contended that in rt addition to the aforesaid grounds petitioner is also entitled for bail on the ground of delay in trial because petitioner is behind the bars since last more than 2 years and trial is not progressing further for the reasons that co-
accused Lekh Raj has preferred a Criminal Revision No. 490 of 2022 against an order passed by the Trial Court, wherein record of the Trial Court has been summoned and after receipt of record, the said Criminal Revision has been ordered to be listed for final hearing in due course. It has been submitted that now date of hearing of the Criminal Revision is uncertain and, therefore, there is no possibility of progress in the trial for want of record.
20. Petitioner had also approached Special Judge, Kullu, H.P., by filing Bail Application No.129 of 2022 for enlarging him on bail. The said application was dismissed by Special Judge, Kullu, vide order dated 26.07.2022.
21. Thereafter petitioner had preferred Cr.M.P. (M) No. 2054 of 2022 in this High Court by raising all pleas raised hereinabove, except the plea related to delay in trial. All these issues were considered and 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 the bail application, bail application of the petitioner was ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 10 Cr.MP (M) No. 2747 of 2023 rejected vide order dated 1.12.2022 with observation that it was not a case where no prima facie case at all is made out against the petitioner.
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22. Petitioner had assailed the order dated 1.12.2022 passed in Cr.M.P. (M) No. 2054 of 2022 by filing Petition for Special Leave to Appeal (Crl.) No. 2135 of 2023, titled as Inder Dev Vs. State of H.P., which was disposed of vide order dated 24.2.2023 with observation that there was no of reason to interfere with the impugned judgment at that point in time with liberty to the petitioner to renew his prayer in accordance with law before the Trial Court in changed circumstances in future.
23. rt Petitioner had also approached the Trial Court by filing bail application CID Case No. & Reg. No. 296 of 2023, which has been dismissed on 20.9.2023 and thereafter present petition, has been preferred on 21.10.2023.
24. Only changed circumstance is filing of Criminal Revision No.490 of 2022 by co-accused Lekh Raj, and for summoning of record of Trial court in that petition, further proceedings in the Trial in present matter has been stalled at the instance of co-accused. No effort has been made by either accused including petitioners to send the record back, which indicates that accused persons are interested in delaying the trial so as to take a plea for enlarging them on bail despite their alleged involvement in commission of heinous crime under Section 302 IPC. Co-accused or at least petitioner should have made mention before the Court, which has called the record about the hardship to be suffered by accused persons for delay in trial.
Instead thereof, petitioner has preferred present application for granting him bail. On inquiry from the Registry, it has been noticed that now record of the Trial Court has been sent back for continuation of trial and now there is no stay of proceedings in the Trial. In the aforesaid facts and circumstances, I am of the considered opinion that ground of delay in trial is not available to ::: Downloaded on - 11/12/2023 20:33:42 :::CIS 11 Cr.MP (M) No. 2747 of 2023 the petitioner, at this stage, to enlarge him on bail, particularly keeping in view the nature and manner of commission of offence and period of .
detention in comparison to the punishment provided for the said offence.
25. Learned counsel for the petitioner has also placed reliance upon order dated 15.2.2023 passed by the Supreme Court in Petition for Special Leave to Appeal (Criminal) No. 11714 of 2022, titled as Mukesh of Kumar Vs. The State of Rajasthan & another, whereby bail has been granted to an accused arrested for commission of offence under Section 302 IPC.
26. rt For the peculiar facts and circumstances recorded in the said order, I am of the opinion that the said order is of no help to the petitioner, because in that case involvement of the petitioner was of free fight wherein blows were exchanged and the uncle of accused had received sharp edged injuries on vital part of the body, attracting 307 IPC and brother of complainant had also received five blunt injuries on his head who succumbed to injuries and petitioner/accused therein was accused for giving one blow on the head of deceased. To the contrary in present case, it was a preplanned murder attacking the victim party in a brutal manner as apparent from the record made available. Certainly, at least, present case is not a case of free fight and, therefore, the case of Mukesh Kumar is not comparable with the present case.
27. In view of above discussion, I do not find any ground including any changed circumstance, warranting enlargement of petitioner on bail at this stage. Accordingly, bail application is dismissed.
(Vivek Singh Thakur), th 11 December, 2023 Judge.
(Keshav) ::: Downloaded on - 11/12/2023 20:33:42 :::CIS