Research › Search › Judgment

Himachal Pradesh High Court · body

2018 DIGILAW 717 (HP)

Shiv Kumar v. State Of Himachal Pradesh

2018-04-23

CHANDER BHUSAN BAROWALIA

body2018
JUDGMENT Chander Bhusan Barowalia, J —The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 27 of 2017, dated 05.04.2017, under Sections 302, 382, 201 and 120B IPC, registered at Police Station Bhabanagar, District Kinnaur, H.P. 2. As per the averments made in the petition, the petitioner is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he be released on bail. 3. Police report stands filed. As per the prosecution story, on 05.04.2017, police found a dead body in Sabzi Mandi, Tapri. Police recorded the statement of HC Deepak Kumar, wherein he stated that on 05.04.2017, at about 01:00 a.m., police personnel were on patrol duty. They informed in the Police Station that a dead body of person is found in Sabzi Mandi. Subsequently, police visited the spot and found a dead body lying near truck bearing registration No. HP-26-0439 and pickup No. HP-26A-9595. The dead body was having strangulation marks. From the place of occurrence a bag, mobile phone, ball pen, specs, torch and a lock was found. From the bag Adhaar card was recovered, which was of one Sukhdev. Two driving licences were also recovered. Police also found two ATM cards and some passport size photographs. The truck had its window open and on checking of the documents of the truck driving licence of the deceased was found with documents of the truck. On the basis of the statement, so made by HC Deepak Kumar and investigation conducted on the spot, a case came to be registered and investigation ensued. The spot was photographed and videographed. Police conducted thorough investigation of the case and as per the police the co-accused traveled to Tapri in the vehicle of the petitioner, bearing registration No. HP-25A-3076. The deceased had parked his truck at place Ghanvi. Accused Sukh Dev knew that when the deceased goes to supply goods on behalf of his owner, he carries cash with him, which is paid to him by the consignees. The investigation further unearthed that accused Sukh Dev is co-villager of the petitioner, but accused Sukh Dev subsequently shifted to Ganvi. The deceased had parked his truck at place Ghanvi. Accused Sukh Dev knew that when the deceased goes to supply goods on behalf of his owner, he carries cash with him, which is paid to him by the consignees. The investigation further unearthed that accused Sukh Dev is co-villager of the petitioner, but accused Sukh Dev subsequently shifted to Ganvi. On 04.04.2017, accused Sukh Dev telephonically called the bail petitioner and they remained in contact from 05.45 p.m. till 08:19 p.m. and in the meanwhile ten calls were made by accused Sukh Dev to the petitioner. Later on, the petitioner drove his vehicle to Ganvi and from there he took his co-accused Sukh Dev and Ajay Kumar to Tapri. As per the prosecution story, they arrived at Tapri at about 10:30/10:45 p.m. Soon thereafter, they went to Sabzi Mandi Tapri and woke up the deceased. Accused Sukh Dev and Ajay Kumar strangulated the deceased with a rope. They took some currency notes from the truck and fled towards JSW Hospital. Afterwards, accused Sukh Dev made a telephonic call to the petitioner asking him to pick up from JSW Hospital. The petitioner, in order to conceal his movement, took a longer route to reach JSW Hospital and he after picking up the accused persons dropped them. The petitioner thereafter also remained in touch with accused Sukh Dev in between 03:57 to 04:24 a.m. CCTV footage clearly showed the movement of the petitioner and call details also show his involvement in the alleged offence. Police completed all the investigation an arrested the accused persons and the petitioner. Recoveries were effected, spot map was prepared and the statements of the witnesses were recorded. As per the medical report, the deceased died as a result of ligature strangulation (homicidal in nature) . Challan stands presented in the learned Trial Court and the case is listed for prosecution evidence on 21.05.2018. Lastly, the prosecution has prayed that the bail application be dismissed, as the petitioner, if released on bail, can tamper with the prosecution evidence. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioner has argued that the petitioner is innocent. 4. I have heard the learned Counsel for the petitioner, learned Additional Advocate General for the State and gone through the record, including the police report, carefully. 5. The learned counsel for the petitioner has argued that the petitioner is innocent. The petitioner is the resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that no fruitful purpose will be served by keeping him behind the bars for an unlimited period. He has argued that the petitioner took the accused to Ganvi, as one of the accused is resident of the village of the petitioner, so he took them in his vehicle. It has also come on record that the co-accused has filled patrol of Rs. 1000/- in the vehicle of the petitioner. Conversely, the learned Additional Advocate General has argued that the petitioner remained in touch with the accused even after dropping. He has further argued that taking into consideration seriousness of the offence, the application of the petitioner may be dismissed. 6. In rebuttal the learned counsel for the petitioner has argued that the petitioner cannot be kept behind the bars for an unlimited period. He has further argued that the petitioner is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be enlarged on bail. 7. At this stage, after going through the record in detail, this Court finds that the role of the petitioner was that he took the accused persons to the spot of occurrence and brought them back. Though at Tapri he remained sitting in the vehicle. It has also come on record that the money, which the co-accused stole from the truck, distributed among themselves only. Thus, the petitioner was not given any share in the stolen money. It means that the petitioner may not have knowledge with respect to the intention and act of the co-accused and he was being used on payment of rent of car only. Thus, the petitioner was not given any share in the stolen money. It means that the petitioner may not have knowledge with respect to the intention and act of the co-accused and he was being used on payment of rent of car only. Taking these circumstances into consideration, alongwith the fact that the petitioner is resident of the place and he is behind the bars since last one year and also the fact that he has no direct role in the alleged offence, as in the case of co-accused and the allegations against him are totally different and distinguishable, as, as per the prosecution story, the seen of crime was 200 meters away from the place where the petitioner has parked his vehicle, so the role of the petitioner was not direct and the only case against the petitioner is made out under Section 34 IPC or under conspiracy. Considering the facts that the petitioner is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, he is behind the bars since last one year, this Court finds that the petitioner, in order subserve the ends of justice, is required to be released on bail. Therefore, the present is a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. Accordingly, the petition is allowed and it is ordered that the petitioner, who has been arrested by the police, in connection with FIR No. 27 of 2017, dated 05.04.2017, under Sections 302, 382, 201 and 120B IPC, registered at Police Station Bhabanagar, District Kinnaur, H.P., he shall be released on bail forthwith in this case, subject to his furnishing personal bond in the sum of Rs. 50, 000/- (rupees fifty thousand) with two sureties in the like amount to the satisfaction of learned Trial Court. The bail is granted subject to the following conditions: (i) That the petitioner will appear before the learned Trial Court as and when required. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will 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 the Investigating Officer or Court. 8. (ii) That the petitioner will not leave India without prior permission of the Court. (iii) That the petitioner will 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 the Investigating Officer or Court. 8. In view of the above, the petition is disposed of.