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2016 DIGILAW 148 (HP)

Mehar Chand v. State of Himachal Pradesh

2016-02-29

SURESHWAR THAKUR

body2016
JUDGMENT : Sureshwar Thakur, J (oral) The instant petition has been instituted by the bail petitioner under Section 439 Cr.P.C, for his being released from judicial custody wherein he stands presently lodged for his allegedly committing offences punishable under Sections 302, 201 readwith 34 of IPC, recorded in case FIR No. 251/14 of 30.10.2014, registered at Police Station Baddi, District Solan, H.P. 2. The bail applicant and the deceased were coemployees in Unison Company at Jharmajri, Baddi, District Solan, H.P. The body of the deceased Sharwan Kumar stood recovered as depicted in site plan from a Nalah on 25th October, 2014. The Investigating Officer, on recording the statement of Vikas who had therein communicated the factum of his having last seen on 19th October, 2014 both the co-accused and the deceased simultaneously atop the motorcycle of the bail applicant, concluded therefrom of the bail applicant along with the co-accused standing connected in the murder of the deceased, whose body, however came to be located subsequently on 25th October, 2014. Nonetheless, the efficacy of the theory of last seen as propounded by the prosecution at this stage may loose its tenacity and vigor in the face of it emanating from a perusal of the file maintained by the Investigating Officer, of the deceased returning to perform work at his work place on the subsequent day. The factum of the deceased returning to the factory to perform work thereat on the day subsequent to his standing purportedly last seen in the company of both the accused while theirs being simultaneously atop the motorcycle of the bail applicant would have carried force to connect the bail applicant in the offences alleged against him only in the event of disappearance of the deceased in quick spontaneity of his being purportedly last seen with both the accused in the manner aforesaid. Contrarily the factum of his returning to perform work at his work place on the day subsequent to his purportedly last seen in the company of both accused while theirs being simultaneously atop the motorcycle of the bail applicant dispels the effect, if any of the efficacy of the circumstantial link constructed by the Investigating Officer embodied in the hypothesis of his being alongwith the co-accused standing last seen in the company of the deceased. Moreover, the body of the deceased was recovered from a Nalah on 25th October, 2014, hence a week subsequent to his being purportedly last seen in the company of both the accused while theirs being simultaneously atop the motorcycle of the bail applicant. As a sequitur, the belated recovery of the body of the deceased or its recovery being improximate to his standing purportedly last seen in the company of the accused while theirs being simultaneously atop the motorcycle of the bail applicant annihilates the effect, if any, of the deceased standing seen in the company of the accused. For reiteration, obviously, the principle or maxim of “last seen” to connect the bail applicant in the offences alleged against him would carry weight and succor only if subsequent to the deceased being purportedly last seen in the company of the bail applicant stood never seen thereafter. In other words, if he was for the reasons aforesaid seen thereafter the maxim of “last seen” would not apply. In face thereof reliance at this stage by the Investigating Officer upon the statement of Vikas communicating therein of his having purportedly last seen both the accused in the company of the deceased while theirs being simultaneously atop the motorcycle of the bail applicant is inapt nor does it constitute any firm link in the chain of circumstantial evidence as constructed by him against the accused. 3. Be that as it may the Investigating Officer had collected blood stains existing on the motorcycle of the bail applicant for theirs being sent for comparison with his blood group to hence constrain a conclusion of both the accused alongwith the deceased even subsequent to 19th October, 2014 simultaneously joining each others company whereafter the body of the deceased stood detected from a Nalah. However, the aforesaid blood stains collected by the Investigating Officer on standing dispatched to the FSL concerned for elicitation of an opinion thereon on the tallying of the blood stains occurring on the motorcycle of the bail applicant with the blood group of the deceased, for marking their inter-se compatibility, has evinced therefrom an opinion of theirs occurring no compatibility inter-se the blood group of the deceased vis-a-vis the occurrence of the blood stains thereon. In face thereof the aforesaid piece of evidence gives no leverage or capital to the Investigating Officer to contend of its constituting the best evidence for connecting the accused in the offences alleged against him. 4. Lastly, the learned Deputy Advocate General has with force contended before this Court qua the recovery of the purportedly blood stained stone by the Investigating Officer at the instance of accused Akhilesh while standing thereat joined by the bail applicant from the vicinity of the site of occurrence comprising a potent link in the chain of circumstances for connecting the accused/bail applicant in the offences alleged against him. The recovery of the aforesaid purported weapon of offence or purported item wielded or used by the co-accused while the latters standing purportedly joined thereat by the bail applicant to inflict a fatal injury on the head of the deceased is to be also construed to be of no avail to the investigating officer for recording thereupon an inference of prima-facie guilt of the bail applicant in the offences alleged against him, as given the place of its recovery from an open/accessible place rather an inference of its standing planted thereat is easily garnerable. The aforesaid inference stands fortified by the factum of the Investigating Officer alongwith the villagers having a month prior to its purported recovery visited the site of occurrence whereat there is no reflection in the site plan of its occurrence at the site of incident. Even though palpably it was recovered from an open visible and accessible place, hence when its detection thereat at the stage aforesaid was not impossible yet its occurrence thereat stood unrecorded in the site plan. Consequently the factum of its remaining unnoticed despite its apparent visibility constrains a prima-facie inference of a month therafter its standing ingeniously planted thereat at the instance of the Investigating Officer, for falsely implicating the bail applicant. Moreover, when at this stage no material has been placed on record by the prosecution demonstrating that in the event of bail being granted to the bail petitioner, there is every likelihood of his fleeing from justice or tampering with the prosecution evidence, this Court is constrained to afford the facility of bail in favour of the bail petitioner. Accordingly, the bail applicant is ordered to be released on bail, subject to compliance by him with the following conditions:- 1. Accordingly, the bail applicant is ordered to be released on bail, subject to compliance by him with the following conditions:- 1. That he shall furnish personal and surety bonds in the sum of Rs.50,000/- each, to the satisfaction of Chief Judicial Magistrate, solan. 2. That he shall join the investigation, as and when required by the Investigating agency. 3. 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 Court or to the Police. 4. That he shall not leave India without the prior permission of the Court. 5. That he shall deposit his passports, if any, with the Police Station, concerned. 6. 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. In view of the above, the instant petition is dismissed. 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.