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2020 DIGILAW 64 (HP)

Nikhil Malik v. State Of Himachal Pradesh

2020-01-04

CHANDER BHUSAN BAROWALIA

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JUDGMENT Chander Bhusan Barowalia, J. - The present bail application has been maintained by the petitioners under Section 439 of the Code of Criminal Procedure seeking their release in case FIR No. 68 of 2016, dated 27.06.2016, under Section 302, 307, 147, 148, 149 IPC and Sections 25 & 29 of the Arms Act, registered at Police Station Dharampur, District Solan, H.P. 2. The facts giving rise for registration of the above case against the petitioner and others can tersely be encapsulated as under: On 26.06.2016 Smt. Taran Jeet Kaur (complainant) got her statement recorded under Section 154 Cr.P.C. The complainant stated that she alongwith her husband, Shri Param Jeet Singh (deceased) used to run a restaurant (dhaba) at Sanawara and the said dhaba was being looked after by her, her husband and nephew Hasandeep (injured). On 26.06.2016, when she was washing clothes, around 05:00 p.m., 10/15 persons of a tourist group were in the dhaba and they were being attended upon by Naresh Kumar (attendant). There arose a dispute qua the freshness of the meals and scuffle ensued. One of the persons from the tourist group went to the vehicle, brought a pistol and fired on her husband (Shri Param Jeet Singh). Shri Hasandeep was also hit with gun shot on his chest. Thereafter, all the persons fled away from the spot in their vehicle, having registration number of Uttar Pradesh. The husband of the petitioner and Shri Hasandeep were rushed to the CHC, Dharampur. The husband of the petitioner was declared dead and Shri Hasandeep was referred to PGI, Chandigarh. On the basis of the statement of the complainant, police registered a case and the investigation ensued. Postmortem examination on the corpse of the deceased was conducted. Police prepared the spot map and clicked photographs of the spot. CCTV footage was obtained and police recovered empty cartridges, sword like weapon, having blood, pieces of carton etc. During the course of investigation, it was unearthed that the petitioner alongwith other accused persons fled away from the spot in vehicle, having registration No. UP14FT-3871. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. The petitioner was arrested on 27.06.2016 and he was medically examined. Police collected the scientific evidence for analysis. Other accused persons were also arrested. Scientific samples collected from the spot were chemically examined in Forensic Science Laboratory, Junga. CCTV footage was also examined, which shows the presence of the petitioner and other accused persons on the spot. During the course of investigation, it was unearthed that the petitioners alongwith other accused persons were on tour to Dharamshala and Shimla and while returning they stopped in the dhaba of the deceased. The petitioner and other accused persons were not satisfied with the food quality, so a quarrel started and co-accused Rahul Malik fired on the deceased. As per the prosecution, challan stands presented in the Court and now the prosecution witnesses are being examined. Lastly, it is prayed that the bail applications of the petitioner be dismissed, as the petitioner alongwith other co-accused was involved in a serious offence and in case he is enlarged on bail, he may tamper with the prosecution evidence and may also flee from justice. The prosecution objected the petition on the ground that there exists prima facie case against the petitioner and other accused persons and there is reasonable ground that the petitioner, alongwith other accused persons, committed the murder of the deceased, the offence of which the petitioner is accused of is grave and there is possibility that the petitioner, in case enlarged on bail, may abscond. Simultaneously, the prosecution is objecting the bail applications on the premises that in case the petitioner is enlarged on bail, he may try to influence the witnesses and there is possible danger of justice being thwarted by granting bail to the petitioner. 3. I have heard the learned Senior Counsel for the petitioner, learned Additional Advocate General for the State, learned Counsel for the complainant and gone through the record, including the police reports, carefully. 4. The learned Senior Counsel for the petitioner has argued that as per the prosecution story first deceased shot from his pistol at the petitioner and he sustained bullet injury thereafter the petitioner fired. He has further argued that as the petitioner was firstly attacked by the complainant party and by the deceased and the petitioner sustained grievous injury. 4. The learned Senior Counsel for the petitioner has argued that as per the prosecution story first deceased shot from his pistol at the petitioner and he sustained bullet injury thereafter the petitioner fired. He has further argued that as the petitioner was firstly attacked by the complainant party and by the deceased and the petitioner sustained grievous injury. Earlier a cancellation report qua the case registered against the complainant party was prepared, but now a cross case has been registered under Section 307 IPC against them and they are on bail. He has argued that the petitioner is behind the bars for the last more than three years and the trial is not likely to be completed soon. Now with the change in circumstances, the petition may be allowed and the petitioner may be enlarged on bail. Conversely, learned Additinal Advocate General has argued that the petitioner cannot be released on bail as he alongwith other co-accused has committed a serious offence punishable with death and there are chances that in case he is enlarged on bail he may tamper with the prosecution evidence and may also flee from justice, as he is resident of Uttar Pradesh. He has further argued that there is no change in the circumstances and even after recording of some of the prosecution witnesses by the learned Trial Court, this Court has earlier also dismissed the bail petition of the petitioner in the month of August, 2019 and till date no other evidence has been recorded. He has argued that the petitioner alongwith others has moved the objections to the cancellation report and due that the trial could not proceed further, but this cannot be a reason to grant the bail to the petitioner. He has prayed that the bail application of the petitioner may be dismissed. 5. In rebuttal, the learned Senior Counsel for the petitioner has argued that taking into consideration the statement of Ram Singh, he be released on bail. He has further argued that the petitioner is behind the bars for the last more than three years and the trial is not likely to conclude soon and moreover the petitioner cannot be kept behind the bars for an unlimited period, so the petition may be allowed and the petitioner be enlarged on bail. 6. He has further argued that the petitioner is behind the bars for the last more than three years and the trial is not likely to conclude soon and moreover the petitioner cannot be kept behind the bars for an unlimited period, so the petition may be allowed and the petitioner be enlarged on bail. 6. At this stage, after going through the records this Court finds that the statement of Ram Singh was already recorded alongwith other witnesses, when the earlier bail application of the petitioner was dismissed. This Court also finds that the circumstances, which existed on 19th August, 2019, when the earlier bail application of the petitioner was dismissed by this Court, have not changed and they are the same. So, it cannot be said that there is change in the circumstances. At this stage, even after going through the evidence recorded by the learned Trial Court, this Court is unable to conclude that the petitioner is innocent and the complainant party was the aggressor and they are guilty. Prima facie a case under Section 302 IPC is pending against the petitioner and the record shows that the deceased has died due to the gun shot injury. There were gun fires in which the pistol of the petitioner was also used, including the revolver of the deceased, so it is difficult to conclude at this moment with regard to the guilt or innocence of anyone and furthermore this Court cannot conclude at this moment that the petitioner is not liable for the offence charged with. As it has already been held in earlier decision, dismissing the bail of the petitioner, that the offence is serious one in case the petitioner is enlarged on bail, there is possibility that he may tamper with the prosecution evidence and he will be in a position to influence and threaten the prosecution witnesses. 7. In view of what has been discussed hereinabove, at this stage, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour. The petition, which lack merits, deserve dismissal and are accordingly dismissed. 8. The views expressed hereinabove, are only confined to the present petition and shall not be construed as an opinion expressed on the merits of the main case, which shall be adjudged on its own merits. The petition, which lack merits, deserve dismissal and are accordingly dismissed. 8. The views expressed hereinabove, are only confined to the present petition and shall not be construed as an opinion expressed on the merits of the main case, which shall be adjudged on its own merits. Copy dasti.