Himachal Pradesh High Court
Balwinder Singh @ Kadu vs State Of Himachal Pradesh on 6 October, 2023
Author: Virender Singh
Bench: Virender Singh
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.2461 of 2023 Reserved on : 04.10.2023 Decided on : 06.10.2023 Balwinder Singh @ Kadu ...Applicant Versus State of Himachal Pradesh ...Respondent Coram The Hon'ble Mr. Justice Virender Singh, Judge. Whether approved for reporting?1 For the Applicant : Mr. Paresh Sharma, Advocate For the respondent : Mr. Tejasvi Sharma, Additional Advocate General with Ms. Leena Guleria, Deputy Advocate General assisted by ASI Ram Pal, I.O. Police Station, Una, District Una, H.P. Virender Singh, Judge.
ApplicantBalwinder Singh @ Kadu has filed the present application under Section 439 of the Code of Criminal Procedure (hereinafter referred to as the 'Cr.PC'), in case FIR No.344 of 2020, dated 08.09.2020, registered under Sections 302, 452, 506 and 201 of the Indian Penal 1 Whether Reporters of local papers may be allowed to see the judgment? Yes. 2 Code, (hereinafter referred to as the 'IPC'), with Police Station Sadar Una, District Una, H.P.
2. According to the applicant, he is innocent and has falsely been implicated, in the present case.
3. According to the applicant, he is not mentally fit and is undergoing medical treatment from Medical College and Hospital, Tanda, District Kangra, H.P.
4. According to the applicant, he belongs to a very respectable family and have deep roots in the society. He is in judicial custody for the last more than three years, as such, his right to liberty enshrined under Article 21 of the Constitution of India, has been violated.
5. According to the applicant, he is not having any criminal antecedents and nothing has been found, during the investigation, against him.
6. The applicant has also tried his luck before learned Additional Sessions JudgeII, Una, District Una, H.P., by moving the application under Section 439 Cr.P.C., which has been dismissed, vide order dated 25.08.2023.
3
7. On the basis of the above facts, learned counsel appearing for the applicant, has also given certain undertakings on behalf of the applicant, for which, he is ready to abide by, in case, he is ordered to be released on bail.
8. When put to notice, the police has filed the status report disclosing therein that on 8.9.2020, at about 8.41 a.m., Pradhan, Gram Panchayat Jankaur, has informed the police that Veena Kumari, wife of Ashok Kumar, is lying dead, in the pool of blood, in her residential house, upon which the then, Inspector/SHO, Gaurav Bhardwaj, along with Police team, reached on the spot.
8.1. At the spot, dead body of Veena Devi was found, lying in the pool of blood. Her daughter/complainant Mamta Devi made a statement, under Section 154 Cr.PC, disclosing therein that her father expired about 10 years ago. They are three sisters and one brother. Two sisters have been married and the younger one is pursuing her studies. Her brother is working as driver with a tractor. 4 8.2. On 7.9.2020, the complainant, along with her younger sister Pooja, had come to village to meet their mother. Pooja and complainant had gone to their inlaws house at about 5.00 p.m. During night, her brother Rajinder and her mother were in the house. At about 7.00 a.m., younger sister of the complainant informed about the death of their mother, upon which, she reached at Jankaur and found that both the doors were opened and on the outer room, where her mother used to sleep, dead body of her mother was found.
8.3. There were deep wounds over the left side of the head and neck. According to the complainant, it seems that due to some animosity, someone had killed her mother, with sharp edged weapon.
9. On the basis of the above facts, the police registered FIR under Section 302 IPC and criminal machinery swung into motion.
10. Thereafter, the Investigating Officer visited the spot. The Forensic Team from RFSL Dharamshala, also visited the spot and collected the evidence on 8 th September, 2020. It has also been mentioned that 5 Balwinder Kumar @ Kadu has committed the crime and thereafter, he has washed the clothes, worn by him, at the time of incident, in the house of his maternal grand mother. Those were also taken into possession.
11. The postmortem examination, on the dead body, was done. It was found that on the night of the incident, real nephew of deceased (applicant) was wondering there, suspiciously, near the house of the deceased, on motorcycle No.HP36D4330. The applicant is stated to be residing, at his maternal grandmother's house and he was absented from the night of the incident. The motorcycle, which was, parked in front of Sona Devi's house, was also taken into possession.
12. On 12.09.2020, the applicant was arrested. During the investigation, he has made a disclosure statement, under Section 27 of the Indian Evidence Act, disclosing therein that he could get recovered the axe, with which, he has committed the crime. Thereafter, he has got recovered the axe, from the bushes, adjacent to the wall of Government High School, Jankaur, which was taken into possession.
6
13. During the investigation, it was found that on 18.11.2020, Rekha Devi, daughter of deceased got recorded her statement disclosing therein that accused had enriched grudge against the deceased and he used to threaten her with dire consequences. On 21.11.2020, from the office of Patwari Halqa, Rakkad, record was obtained and it was found that Sona Devi, had transferred her holdings, in the name of her grand daughter and deceased Veena Devi had transferred the land, in the name of her daughter Rekha Devi, on 5.2.2020.
14. As per the status report, on the night of 8.9.2020, when, the applicant found the deceased all alone, he had killed her by inflicting the blows with axe.
15. After completion of the investigation, the Police filed the report under Section 173(3) Cr.PC, in this case, which is pending adjudication, in the Court of learned Additional Sessions JudgeII, Una.
16. There are total 34 witnesses, in this case, out of which, 12 witnesses have been examined and the case is now fixed for recording the statements of prosecution witnesses for 6th, 7th and 10th November, 2023. 7
17. On the basis of the above facts, a prayer has been made to dismiss the application.
18. No doubt, the applicant has been named in a serious offence, but, on this count only, the relief, as claimed, by him, in the application, cannot be rejected, as, no apprehension has been expressed, by the Police in the status report.
19. Moreover, the applicant cannot be kept in the judicial custody, for indefinite period, as, pretrial punishment is prohibited under the law. Punishment can only be imposed, after the full fledged trial.
20. No criminal history of the applicant has been mentioned in the status report nor has been argued by the learned Additional Advocate General.
21. Considering the pace of the trial, this Court is of the view that the chances of the conclusion of the trail, in near future, against the applicant, are not so bright, as out of 34 witnesses, only 12 witnesses have been examined, in this case. In such situation, the applicant is able to make out a case for bail.
8
22. Considering all these facts, this Court is of the view that the bail application is liable to be allowed and is accordingly allowed. The applicant is ordered to be released on bail in case FIR No.344 of 2020, dated 8.9.2020, under Section 302, 452, 506 and 201 IPC, registered with Police Station, Sadar Una, District Una, H.P., on his furnishing personal bond in the sum of Rs.50,000/, with two sureties in the like amount, to the satisfaction of learned trial Court.
23. This order of release, however, shall be subject to the following conditions, that:
"a) He shall make himself 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) He shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;
c) He shall not make any inducement, threat
or promises to any person acquainted
with the facts of the case so as to
dissuade them from disclosing such
facts to the Court or the Police Officer;
and 9
d) He shall not leave the territory of India without the prior permission of the Court"
24. Any of the observations made herein above shall not be taken as an expression of opinion on the merits of the case, as these observations are confined only to the disposal of the present bail application.
25. It is made clear that the respondentState is at liberty to move an appropriate application, in case, any of the bail conditions is found to be violated by the applicant.
26. The Registry is directed to forward a soft copy of the bail order to the Superintendent of Jail, District Jail, Una, through email, with a direction to enter the date of grant of bail in the eprison software.
27. In case, the applicant is not released within a period of seven days from the date of grant of bail, the Superintendent of Jail, District Jail, Una is directed to inform this fact to the Secretary, DLSA, Una. The Superintendent of Jail, District Jail, Una, is further directed that if the applicant fails to furnish the bail bonds, as per the order passed by this Court, within a period of 10 one month from today, then, the said fact be submitted to this Court.
( Virender Singh ) Judge October 06, 2023(ps) Digitally signed by RAJNI DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH COURT OF HIMACHAL PRADESH SHIMLA, Phone= a8cebe955d82fa83f77f59dbe2b1b1f19db88b15b RAJNI d754658045e967bb7b7cbda, PostalCode= 171001, S=Himachal Pradesh, SERIALNUMBER = 4798760d48b04a815c33901090aafe7ff1d5ce9a3 00dd6bf3b57c25d0170ca0d, CN=RAJNI Reason: I am the author of this document Location:
Date: 2023.10.07 11:35:22+05'30' Foxit PDF Reader Version: 2023.2.0