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2023 DIGILAW 50 (HP)

Shyam Singh v. State of Himachal Pradesh

2023-01-12

VIVEK SINGH THAKUR

body2023
JUDGMENT : [Vivek Singh Thakur, J.] 1.Petitioner, invoking provisions of Section 439 of the Code of Criminal Procedure, has approached this Court seeking regular bail in case FIR No. 94 of 2021, dated 16.6.2021, registered under Sections 302 and 201 of Indian Penal Code (in short ‘IPC’) in Police Station Theog, District Shimla, H.P. 2. Status report stands filed. Record was also made available. 3. As per prosecution case, on 14.6.2021, Dy.SP received a secret information that a person has been burnt in Gharaach forest. Information was passed to SHO/SI Madan Lal and both of them alongwith Police officials went to Gharaach forest and found burnt wood, ashes and bones in the forest in a Nala. It came in the notice of police party that there was rumour that a Nepali who was residing with Shyam Singh @ Lath in village Bhalech, near Devi Moad was missing and probably it was he who was burnt. Whereupon Shyam Singh was summoned and enquired in Police Station who informed that Bheem Singh Nepali, residing with him, had expired one month ago because of ailment and two Nepalis serving with him had cremated him in the evening in Gharaach forest according to Hindu Rites and Rituals. After having this information, a Team from State FSL, on call of police, visited spot on 15.6.2021 and collected samples of remains of bones, teeth, ash and lower lying on spot and also sample of soil. From the room where Bheem was staying, bedding was also taken in possession. 4. As per prosecution case, on 14.6.2021, when police party, after visiting spot etc. reached at Bhang Jubbar, complainant Prem Singh made a statement to SI/SHO Madan Lal, which was reduced into writing under Section 154 Cr.PC wherein complainant had disclosed that about one month ago, when he, as his regular practice, was going for darshan in temple of of Devi in Devi Moad Mata Mandir, he noticed that at washing centre, Shyam Singh Lath was quarrelling with Nepali, who was residing with him and beating him, with stick/danda and when he came back from temple, both of them were not there and since then, he did not see that Nepali servant of Shyam Singh. Further that 3-4 days ago, he came to know that Shyam Singh Lath had cremated dead body of that Nepali in Gharaach forest and it was the same Nepali servant who was being beaten by Shyam Singh Lath. 5. On the basis of aforesaid statement, case under Sections 302 and 201 IPC was registered and investigation was carried on. Statements of witnesses were recorded under Section 161 Cr.PC. Shyam Singh Lath was interrogated. On finding sufficient material to arrest Shyam Singh Lath, he was arrested on 16.6.2021 at about 11.55 p.m. and information of his arrest was transmitted, according to his desire, to his daughter Nisha Chandani. 6. It is the case of prosecution that during interrogation Shyam Singh disclosed that he had employed Bheem Nepali, about 2 months ago, as a domestic helper, who had met him on road near his shop, but without retaining any document of Bheem Nepali, like Aadhar Card, Nepali National Certificate or any other document so as to identify his original citizenship and information with respect to Bheem Nepali was neither given to Local Panchayat nor to police. 7. It is further case of prosecution that during interrogation Shyam Singh disclosed that on 10.5.2021 he had arguments with Bheem Nepali, because Bheem Nepali had misbehaved whereupon out of anger, he had beaten Bheem Nepali with danda and during that, Nepali received injuries in neck, but he was not taken to hospital and no other person was informed about this. Another Nepali Raj Kumar serving with Shyam Singh had suggested to provide treatment to Bheem but Shyam Singh informed him that he was providing treatment to Bheem by giving medicines himself. On 12.5.2021, Bheem expired. 8. It has come in status report that as per statement of Raj Kumar that Bheem Nepali remained bed ridden for 6-7 days and he was not eating and drinking and was not able to talk and he had expired on account of grievous injury as well as for want of treatment at appropriate time. 9. Statements of Raj Kumar and Suresh Rana were recorded under Section 161 Cr.PC. On 18.6.2021, spot of cremation, room where Bheem Nepali was kept in captivity and room in which he died were identified. 10. 9. Statements of Raj Kumar and Suresh Rana were recorded under Section 161 Cr.PC. On 18.6.2021, spot of cremation, room where Bheem Nepali was kept in captivity and room in which he died were identified. 10. As per status report, after recording disclosure statement under Section 27 of Indian Evidence Act, danda used to beat Bheem was also recovered and spot map of the place, i.e. cremation spot and room where deceased was kept were also identified. 11. In report of Chemical Analysis received from State FSL, it was reported that no significant evidence in soil was found and no opinion was possible about exhibit. As per Specialist of Bio Department, blood was not detected on carpet/talai, cloth and bone pieces taken from spot and further that saliva was not detected in carpet/talai as well as cloth of Bheem. Bone fragments found and lying on spot were identified as human bones belonging to an adult. 12. As per observations of State FSL, charred teeth of deceased and charred bone pieces lifted from spot yielded highly degraded DNA which could not show amplification of Global Filer PCR Amplification Kit and therefore, DNA profile could not be generated from the exhibits. 13. Learned counsel for the petitioner has submitted that petitioner is behind the bars since June 2021 for no fault on his part as he did not kill Bheem. He has further stated that Bheem had expired due to ailment and in those days, Corona pandemic had spread all over the country and in those circumstances, petitioner was not able to dispose of dead body of Bheem in usual manner as there were restrictions in every sphere of life and therefore, dead body of Bheem was cremated with help of two other Nepali servants. It has been further submitted that had it been a case of murder of Bheem by petitioner Shyam Singh, then Shyam Singh would have never been favoured or helped by other Nepali servants. It has been further submitted that Nepali servants had accompanied and helped petitioner Shyam Singh in cremating the dead body of Bheem which indicates that Bheem did not die on account of beatings by petitioner but died on account of serious ailment. 14. It has been further submitted that Nepali servants had accompanied and helped petitioner Shyam Singh in cremating the dead body of Bheem which indicates that Bheem did not die on account of beatings by petitioner but died on account of serious ailment. 14. Learned counsel for the petitioner has submitted that complainant Prem Singh and Nepali servant Raj Kumar have been examined in Court on oath where Prem Singh has completely denied his earlier statement recorded under Section 154 Cr.PC and for resiling from previous statements, recorded by police, he was permitted to be cross examined by Public Prosecutor. But in his cross-examination also, nothing material could be extracted in favour of prosecution. He has further submitted that Raj Kumar was also declared hostile and he did not support the prosecution case rather he supported the version of petitioner that dead body of Bheem Bahadur was cremated in Gharaach forest for his death due to serious ailment. 15. It has been further contended on behalf of petitioner that recovery of danda has not been connected with commission of offence and further that death of Bheem Nepali with help of danda by beating him could not be proved and further that eye witnesses of spot have not supported the prosecution case. 16. Learned Additional Advocate General submits that petitioner is an accused under Section 302 IPC wherein capital punishment may be awarded to petitioner and, therefore, he has opposed the grant of bail to petitioner with further submissions that at this stage only two witnesses have not supported the prosecution case whereas other prosecution evidence is yet to be recorded and there is sufficient material to convict the petitioner under Section 302 IPC. 17. Learned counsel for the petitioner has submitted that witnesses examined by prosecution as PWs 1 and 2 were the key witnesses of prosecution case but they have not supported the prosecution case which casts doubt about credibility of conclusion of investigation in present case and petitioner has been made an accused only on the basis of suspicion without having any iota of evidence to show and establish the same. 18. 18. Without commenting upon merits of the case, but taking into consideration material placed before me and taking note of factors and parameters required to be considered at the time of adjudication of bail application as propounded by the Courts, including the Supreme Court, I am of the considered opinion that at this stage petitioner may be enlarged on bail. 19. Accordingly, present petition is allowed and petitioner is ordered to be enlarged on bail, subject to his furnishing personal bond in the sum of Rs.1,00,000/- with two sureties each in the like amount, to the satisfaction of trial Court and upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to assure presence of the petitioner at the time of trial:- (i) That the petitioner shall make himself available to the Police or any other Investigating Agency or Court in the present case as and when required; (ii) that the petitioner 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/her from disclosing such facts to Court or to any police officer or tamper with the evidence. He shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses; (iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial; (iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected; (v) that the petitioner shall not misuse his liberty in any manner; (vi) that the petitioner shall not jump over the bail; (vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by prosecution; (viii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for his availability to Police and/or during trial; and (ix) the petitioner shall not leave India without permission of the Court. 20. 20. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner, enlarged on bail, as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice. 21. In case the petitioner violates any conditions imposed upon him, his bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law. 22. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013. 23. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and are strictly confined for the disposal of the bail application. 24. The parties are permitted to produce copy of order downloaded from the High Court website and trial Court shall not insist for certified copy of the order, however, if required, passing of order can be verified from the High Court website or otherwise. The petition stands disposed of in the aforesaid terms.