Balak Ram vs State Of Himachal Pradesh

Jyotsna Rewal Dua, J

Petitioner is co-accused in FIR No. 115 of 2018, dated 08.12.2018, registered under Sections 302, 201 and 34 of the Indian Penal Code at Police Station Gohar, District Mandi, H.P. He has prayed for being released on regular bail.

According to the prosecution, the aforesaid FIR was registered in view of the statement given by one Narayan Singh under Section 154 of the Criminal Procedure Code. He stated that he was neighbour of petitioner Balak Ram ; Petitioner had two sons, elder one Khem Chand and the younger by the name of Desh Raj ; Petitioner’s daughter was married, however, his sons were unmarried ; On 07.12.2018 at around 8.00 p.m. while he was returning home, he noticed petitioner and his elder son Khem Singh giving kick blows to Desh Raj ; He though saw the beatings given to Desh Raj , however, proceeded to his home and narrated the events to his son Girdhari ; Sometime later, he glanced towards petitioner’s house, but could not see any individual on the path and found the doors of petitioner’s house closed ; Next day in the morning of 08.12.2018, he saw gathering of people and found out that Desh Raj had died and his naked body was lying in a ‘khud’. He apprehended that Desh Raj was killed by Balak Ram and Khem Chand.

The above led to registration of the FIR and further investigation. Petitioner was arrested on 08.12.2018. His elder son & co-accused Khem Chand had absconded. On the basis of call detail record of the mobile phone used by co-accused Khem Chand and after procuring the tower location used in co-accused Khem Chand’s mobile, the respondents were able to apprehend Khem Chand from Sonathar, Kullu at around 7.00 p.m. on 08.12.2018.

The challan was presented on 07.03.2019. The supplementary challan was presented on 04.05.2019. The trial in the matter is stated to be underway.

Learned counsel for the petitioner submitted that petitioner is behind the bars for almost five years. The trial has been considerably delayed. Therefore, on ground of depreviation of liberty on account of unduly delayed trial, the petitioner is entitled for bail. It was also submitted that there is no evidence against the petitioner linking him with the crime alleged against him. There is no eye witness of the spot. Only on account of statement of Narayan Singh, the FIR was registered implicating the petitioner. Petitioner’s wife Smt. Hirdi Devi, cited as a main witness, has been given up by the prosecution. None of the other witnesses examined by the prosecution thus far, have been able to implicate the petitioner in the FIR. All main witnesses stand examined. Therefore, in the event of petitioner’s being enlarged on bail, there is neither any question of his tampering the prosecution evidence or influencing the prosecution witnesses. The prayer was accordingly made to enlarge the petitioner on bail. It was also submitted that petitioner will abide by all the conditions which may be imposed upon him in case of his enlargement on bail.

Learned Deputy Advocate General opposed the grant of bail to the petitioner. He submitted that petitioner is accused of a very grave offence of murdering his own son. The prosecution has enough evidence about the involvement of petitioner in the FIR. The contention of delayed trial was also opposed. It was submitted that the trial is already underway. 40 witnesses have been examined by the prosecution.

For recording the statements of 9 more witnesses, matter is listed before the learned trial Court on 02.01.2024. Therefore, prayer was made for dismissing the bail petition.

Consideration

I have heard learned counsel on both sides & considered the case file as well as the record produced by the respondents.

4(i) Petitioner, alongwith his son Khem Chand, are facing charges of murdering Desh Raj. The deceased Desh Raj was son of the petitioner and brother of co-accused Khem Chand.

4(ii) Though, while deciding the bail petition, the Court is not to dissect the evidence, however, some prima-facie reference to the evidence/investigation is being made hereinafter only for the purpose of adjudication of this bail petition.

4(ii) (a) As per PW18-the doctor, who conducted the post-mortem of the deceased, following injuries were noted on the body of deceased Desh Raj :-

“ a. There is reddish bone deep lacerated wound oblique in direction of size 6x1.5 cm over left ear and temporal region dividing the ear lobule in two parts.

b. There are multiple reddish brown grazed abrasions present over forehead, both eyebrows, over nose and face with laceration of size 1x.5x.5 cm over mid-part of lower lip.

c. There are gross multiple reddish brown grazed abrasions (brush burn due to dragging) over entire thorax, abdomen right side become leathery due to drying), over both shoulders alongwith scapular region, over back, both ischial tuberosity, both buttocks, antero-lateral aspect of both thighs, both knee joints alongwith shin region and over anterior aspect of both feet.

d. On opening the scalp, there is gross subgaleal haematoma over entire scalp.

e. On opening the skull, there is gross sub-dural and sub-arachnoid haemorrhage over both parieto-temporal and frontal region.

f. On opening the thorax stomach contain about 150 cc semi digested food with foul smelling odour.”

4(ii) (b) Prima-facie, there does not seem to be any eye witness of the crime in question. Narayan Singh, who statedly witnessed the beatings being given to Desh Raj by the petitioner and co-accused Khem Chand on 07.08.2019, while appearing in the witness box as PW-

29, admitted that he could not state as to how Desh Raj had died.

4(ii) (c) Smt. Hirdi Devi-the mother of deceased Desh Raj , who is also the mother of co-accused Khem Chand and wife of present petitioner in whom the petitioner had statedly confessed committing the crime, has been given up by the prosecution.

4(ii) (d) As per investigation, petitioner and his two sons i.e. deceased Desh Raj and co-accused Khem Chand were habitual of quarreling with each other after consuming liquor. The records produced by the respondent reflect that quantity of ethyl alcohol found present in the blood of deceased was 197.88 mg % and quantity of ethyl alcohol detected in blood of co-accused Khem Chand was 156.98 mg %. The petitioner was not found to have consumed liquor at the relevant time.

4(ii) (e) As per status report, it was co-accused Khem Chand who had given ‘danda’ blow on Desh Raj’s head.

4(iii) Petitioner is behind the bars w.e.f. 08.12.2018. He is about to complete five years in custody. The trial of the case had started in the year 2019. The prosecution has examined 40 witnesses in last four years. 10 witnesses still remain to be examined including the investigating officer. The trial has been delayed.

Hon’ble Apex Court has repeatedly held that deprivation of personal liberty without ensuring speedy trial is not consistent with Article 21 of the Constitution of India. While deprivation of personal liberty for some period may not be avoidable, but period of deprivation of pending trial cannot be unduly long [2022 (3) SCC, 695, titled Ashim & Asim Kumar Haranath Bhattacharya alias Asim Harinath Bhattacharya alias Aseem Kumar Bhattacharya Versus National Investigating Agency].

In 2021(3) SCC, 713, Union of India Versus K.A.Najeeb, Hon’ble Apex Court considered various judicial precedents where Article 21 of the Constitution of India was invoked in case of gross delay in disposal of cases of under trials and consequential necessity to release them on bail. The earlier decisions were reiterated that liberty granted by Part-III of the Constitution, would cover within its protective ambit not only due procedure and fairness, but also access to justice and speedy trial. It was held that once it is obvious that a timely trial would not be possible and the accused have suffered incarceration for a significant period of time, the Courts would ordinarily be obligated to enlarge them on bail. Some relevant paras from the judgments are extracted hereinafter: -

“10. It is a fact that the High Court in the instant case has not determined the likelihood of the respondent being guilty or not, or whether rigours of Section 43D(5) of UAPA are alien to him. The High Court instead appears to have exercised its power to grant bail owing to the long period of incarceration and the unlikelihood of the trial being completed anytime in the near future. The reasons assigned by the High Court are apparently traceable back to Article 21 of our Constitution, of course without addressing the statutory embargo created by Section 43D (5) of UAPA.

The High Court’s view draws support from a batch of decisions of this Court, including in Shaheen Welfare Assn., laying down that gross delay in disposal of such cases would justify the invocation of Article 21 of the Constitution and consequential necessity to release the undertrial on bail. It would be useful to quote the following observations from the cited case:

“10. Bearing in mind the nature of the crime and the need to protect the society and the nation, TADA has prescribed in Section 20(8) stringent provisions for granting bail. Such stringent provisions can be justified looking to the nature of the crime, as was held in Kartar Singh case, on the presumption that the trial of the accused will take place without undue delay. No one can justify gross delay in disposal of cases when undertrials perforce remain in jail, giving rise to possible situations that may justify invocation of Article 21.”

…(emphasis supplied)

Even in the case of special legislations like the Terrorist and Disruptive Activities (Prevention) Act, 1987 or the Narcotic Drugs and Psychotropic Substances Act, 1985 (“ the NDPS Act”) which too have somewhat rigorous conditions for grant of bail, this Court in Paramjit Singh v. State (NCT of Delhi), Babba v. State of Maharashtra and Umarmia alias Mamumia v. State of Gujarat enlarged the accused on bail when they had been in jail for an extended period of time with little possibility of early completion of trial. The constitutionality of harsh conditions for bail in such special enactments, has thus been primarily justified on the touchstone of speedy trials to ensure the protection of innocent civilians.

We may also refer to the orders enlarging similarly situated accused under the UAPA passed by this Court in Angela Harish Sontakke v. State of Maharashtra. That was also a case under Sections 10, 13, 17, 18, 18A, 18B, 20, 21, 38, 39 and 40(2) of the UAPA. This Court in its earnest effort to draw balance between the seriousness of the charges with the period of custody suffered and the likely period within which the trial could be expected to be completed took note of the five years’ incarceration and over 200 witnesses left to be examined, and thus granted bail to the accused notwithstanding Section 43D(5) of UAPA. Similarly, in Sagar Tatyaram Gorkhe v. State of Maharashtra, an accused under the UAPA was enlarged for he had been in jail for four years and there were over 147 witnesses still unexamined.

This Court has clarified in numerous judgments that the liberty guaranteed by Part III of the Constitution would cover within its protective ambit not only due procedure and fairness but also access to justice and a speedy trial. In Supreme Court Legal Aid Committee (Representing Undertrial Prisoners) v. Union of India, it was held that undertrials cannot indefinitely be detained pending trial. Ideally, no person ought to suffer adverse consequences of his acts unless the same is established before a neutral arbiter. However, owing to the practicalities of real life where to secure an effective trial and to ameliorate the risk to society in case a potential criminal is left at large pending trial, Courts are tasked with deciding whether an individual ought to be released pending trial or not. Once it is obvious that a timely trial would not be possible and the accused has suffered incarceration for a significant period of time, Courts would ordinarily be obligated to enlarge them on bail.

It is thus clear to us that the presence of statutory restrictions like Section 43D (5) of UAPA per se does not oust the ability of Constitutional Courts to grant bail on grounds of violation of Part III of the Constitution. Indeed, both the restrictions under a Statue as well as the powers exercisable under Constitutional Jurisdiction can be well harmonised. Whereas at commencement of proceedings, Courts are expected to appreciate the legislative policy against grant of bail but the rigours of such provisions will melt down where there is no likelihood of trial being completed within a reasonable time and the period of incarceration already undergone has exceeded a substantial part of the prescribed sentence. Such an approach would safeguard against the possibility of provisions like Section 43-D (5) of UAPA being used as the sole metric for denial of bail or for wholesale breach of constitutional right to speedy trial.”

Petitioner though is accused of a very serious and grave offence, but the fact cannot be lost sight of that his guilt, if any in the crime, his role therein is yet to be proved and analysed. He is languishing in jail for about five years. The petitioner cannot be left to incarcerate during the pendency of the trial. Repeated bail petitions moved by the petitioner in this Court were withdrawn by him with the hope of expeditious conclusion of trial. A bail petition filed by him was dismissed by the learned Trial Court on 12.10.2022 inter-alia with the observation that trial was nearing conclusion. However, more than a year down the line, the trial has still not completed. Ten witnesses still remain to be examined. In its status report, the respondent has not put the blame on the petitioner for delayed trial. The status report points out one more FIR i.e. 19 of 1994 was registered against the petitioner. However, that FIR registered on 24.01.1994 was under Sections 41 & 42 of the Indian Forest Act and Section 379 of the Indian Penal Code. The status report itself mentions that petitioner was acquitted in that FIR on 31.10.1994. No other criminal history of the petitioner has been mentioned in the status report. The petitioner is resident of State of Himachal Pradesh. Learned Additional Advocate General has fairly submitted that all independent witnesses stand examined and remaining prosecution witnesses, whose statements are yet to be recorded are only official witnesses. Even otherwise, the apprehension expressed by the prosecution about petitioner’s influencing the prosecution witnesses can be taken care of by imposing stringent conditions upon him and by giving liberty to the respondent to move for cancellation of bail in case of breach thereof.

In view of all the aforesaid reasons and prima-facie considering :- the allegations against the petitioner, the role allegedly played by him in the commission of crime, the nature of evidence against him, the period spent by him in custody & all attending factors & parameters but without expressing any opinion on the merits of the case, the present petition is allowed. Petitioner is ordered to be released on bail in the aforesaid FIR on his furnishing personal bond in the sum of Rs.1,00,000/- (Rupees One Lakh) only with one local surety in the like amount to the satisfaction of the learned Trial Court having jurisdiction over the Police Station concerned, subject to the following conditions:-

(i) Petitioner is directed to join the investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii) Petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii) Petitioner will not leave India without prior permission of the Court.

(iv) Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(v) Petitioner shall not leave territorial jurisdiction of State of Himachal Pradesh without informing the concerned SHO.

(vi) Petitioner shall not make any inducement, threat or promise, directly or indirectly, to the Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(vii) Petitioner shall inform the Station House Officer of the concerned police station about his place of residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN Card, Bank Account Number, if any.

In case of violation of any of the terms & conditions of the bail, respondent-State shall be at liberty to move appropriate application for cancellation of the bail. It is made clear that observations made above are only for the purpose of adjudication of instant bail petition and shall not be construed as an opinion on the merits of the matter.

Learned Trial Court shall decide the matter without being influenced by any of the observations made hereinabove.

With the aforesaid observations, the present petition stands disposed of, so also the pending miscellaneous applications, if any.