Baldev Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 439 of Code of Criminal Procedure (in short ‘Cr.PC’), seeking regular bail in case FIR No. 116 of 2019 dated 9.12.2019, registered under Sections 341, 307, 324 and 325 of Indian Penal Code (in short ‘IPC’).

2 Status report stands filed and record was also made available.

Prosecution case is that on 9.12.2019 complainant Nikhil Kolesh, a contractor, carrying out the work of retaining wall of Jogiban link road, informed that at about 8 AM his labour told him that a person was lying under the bridge covered with blanket. Whereupon, complainant along with his labourer Sehjad rushed to the spot and found a person there having cuts on throat and injuries on mouth with oozing blood. They called Pradhan Kamal Sharma telephonically who reached at spot along with other persons and information was sent to Police Station and injured was taken to hospital with the help of 108 Ambulance Service.

4 After recording aforesaid statement under Section 154 Cr.PC, FIR was registered and investigation was carried out. From the spot, blood stained soil, stones, hair, button, grass, leaves, muffler and sheet were taken in possession and a sharp edged shaving knife (Ustra) was also recovered found on the spot.

5 The injured, after giving first aid, was referred to PGI wherefrom he was sent back to Dr.Yashwant Singh Parmar Government Medical College, Nahan. On 10.12.2019, after taking opinion of Doctor about fitness to make statement, statement of victim was recorded under Section 161 Cr.PC wherein he disclosed that a person namely Baldev, resident of Sarahan side and working at Kala Amb, had attacked him with intention to kill him by causing injuries to him with sharp weapon and with stones on throat, face and head.

6 In his statement, recorded under Section 161 Cr.PC, victim had stated that petitioner/accused was God brother of his wife and he had stayed in his house on previous night and in the morning at 4 AM, he took him to Markanda river on the pretext of morning walk and on reaching there, petitioner started to crush tabacoo and victim sat on the river side, where, petitioner attacked him from back side with knife causing injuries in his neck and face. Further that he (victim) could not see the weapon but it was a sharp edged weapon either knife or something else with which petitioner had tried to kill the victim. He had further stated that petitioner, being God brother of his wife, was frequently visiting his house since last so many years and victim had no apprehension that petitioner would try to kill him after deceiving him, and had he been knowing about it, he would not have accompanied the petitioner. It was further stated by victim that he had saved him by hitting petitioner Baldev with stone and running from the spot and thereafter he hide himself under the bridge. In MLC, Doctor had recorded as many as 14 injures on the body of victim and as per opinion of Doctor, injury on right fronto tempro parital region was grievous in nature and dangerous to life.

7 On the basis of aforesaid information, Section 307 IPC was incorporated in the case and petitioner was arrested on 11.12.2019. He was remanded to police custody by learned Chief Judicial Magistrate from 12.12.2019 to 16.12.2019.

8 On 12.12.2019 victim was referred from Government Medical College Nahan to AIMS Rishikesh.

9 As per prosecution case, during interrogation, petitioner had disclosed that he had affection for wife and three children of victim and number of times, he had provided financial assistance to them, and when it came in his knowledge that victim, after consuming liquor, used to harass his wife and children, petitioner could not tolerate it for sufferings of family of the victim and therefore, he made-up the mind to finish the victim and he came to victim’s residence on his motorcycle and thereafter committed the offence. The movement of petitioner on motorcycle was substantiated by police with the help of CCTV camera footage of barrier at Kala Amb.

10 During investigation, it was found that name of father of petitioner, as mentioned by him, Hukami Ram was incorrect and as a matter of fact, he was son of Ram Bahadur and he was not registered in his Panchayat as since long time, he was residing in house of his maternal uncle Hukami Ram and he had disclosed his father’s name as Hukami Ram. Further that petitioner has been found involved in commission of offences earlier also in case FIR No. 224 of 2012 dated 24.11.2012 under Sections 341, 323, 325, 506 and 34 IPC Police Station Nahan, District Sirmaur, FIR No. 51 of 2010 dated 7.5.2010 under Sections 379, 420, 468 and 471 IPC at Police Station Chhachroli, Haryana, FIR No. 97 of 2016 dated 24.2.2016 under Section 365, 395, 397 IPC at Police Station Shahbaad Haryana and FIR No. 17 of 2017 dated 16.1.2017 under Section 174(A) IPC Police Station Chhachroli Haryana.

11 It has also been reported in status report that petitioner was convicted by learned Judicial Magistrate First Class, Ambala in case FIR No. 222 of 2013 under Sections 420, 407, 411 and 120B IPC registered in Police Station Baldev Nagar, Ambala in March, 2020 and thereafter, in that case, he served his sentence in Central Jail, Ambala and during that period he also availed parole. During this period, he could not be produced before the trial Court at Nahan, and apart from it, because of discrepancy in the name of father also, he could not be produced in the Court. After completion of currency of sentence on 15.9.2021; he has been transferred from Central Jail Ambala to Model Central Jail, Nahan and since then, he is in judicial custody and now, next date for consideration of charge in trial Court is 15.6.2022.

12 Learned counsel for petitioner has submitted that in this case FIR was registered in the year 2019 and challan was also presented in the same year and thereafter supplementary challans were presented in the Court in June, 2020 and September 2020, but since then till date even charges have not been framed and there is delay in trial and therefore, petitioner deserves to be enlarged on bail on this ground particularly keeping in view Article 21 of Constitution of India.

13 Learned Additional Advocate General has submitted that delay in trial, if any, has not been caused on account of laxity on the part of Court or prosecution, but for reason that petitioner was transferred to Ambala Jail in March, 2020 for serving his sentence in case FIR No. 222 of 2013, referred supra, and after serving the sentence, he has been transferred to Model Central Jail, Nahan on 15.2.2021 and during intervening period, he could not be produced in Court for discrepancy in the parentage which cannot be attributed to any omission or commission on the part of prosecution but for disclosure of incorrect name of father by petitioner himself, which has been clarified by prosecution by placing on record the documents related thereto received from Panchayat by filing supplementary challan on 19.9.2020.

14 Learned counsel for petitioner has submitted that in his statement recorded under Section 161 Cr.PC, injured Kamlender has claimed that petitioner beat him in the morning at 4 AM on 9.12.2019 claiming that petitioner was God brother of his wife and had come to his home on 8th December and stayed in his house during night and in the morning at 4 AM, petitioner took victim (Kamlender) to bank of Markanda river on the pretext of morning walk and when he was sitting there, petitioner Baldev attacked him with sharp edged weapon and stones, but he somehow, managed to run from spot and saved his life by hiding himself under the bridge.

15 Learned counsel for petitioner has pointed out that claim of Investigating Agency is contrary to version of injured as it has been reported in status report that petitioner came to house of injured on 9.12.2019 in the early morning hours after 3.30 AM and the said fact has been substantiated from CCTV footage of Kala Amb Barrier wherein petitioner has been found coming on his motorcycle from Narayangarh side to Jogiban side and had crossed Kala Amb Barrier at 3.40.50 AM and CCTV footage has also been relied upon by Prosecution Agency as evidence against petitioner and therefore, learned counsel for petitioner has submitted that there are two contrary versions contradicting each other with respect to presence of petitioner at two places at one point of time. These two contrary versions indicate that petitioners has been falsely implicated. He has submitted that it appears that petitioner was having objection about behaviour of injured with his wife and children under influence of liquor and therefore, injured was inimical to him and on finding opportunity victim has roped petitioner in a false case. Therefore, it is contended that injured is not speaking truth but hiding something for implicating the petitioner in present case.

16 Learned counsel for petitioner has contended that petitioner was arrested on 11.12.2019 and he was transferred to Ambala Central Jail in relation to conviction in a case under Section 420 IPC on 9.3.2020 and he remained in Ambala Jail till 15.2.2021 whereafter he has been again transferred to Model Central Jail, Nahan. He has further submitted that during his detention in Ambala Jail, as stated in status report, petitioner was permitted to go on parole and after expiry of parole, he surrendered before the concerned Jail Authorities without violating the terms of parole within time and therefore, this conduct of petitioner is sufficient to conclude that on enlarging him on bail, he shall be available for trial and he shall not jump over the bail and further keeping in view the aforesaid circumstances, cases stated in status report, to have been registered against the petitioner, have lost its relevancy as in present case, petitioner, is not a convict but is an under-trial prisoner who is to be treated as innocent unless held guilty by Court.

17 Learned counsel for petitioner submits that in case, petitioner is enlarged on bail, then for assurance of his availability during trial, he is ready to furnish local surety to the satisfaction of Court and to abide by conditions to be imposed by Court.

18 Taking into consideration, the entire facts and circumstances including period of detention, but, without commenting on merits thereon and taking into account factors and parameters, as propounded by the Supreme Court and this Court, required to be considered at the time of adjudication of bail application, I am of the opinion that petitioner may be enlarged on bail in present case at this stage.

19 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today and also subject to any further conditions to be imposed by trial Court for assuring his presence during trial including the following further conditions:-

(i) That the petitioner shall make himself available during the investigation as well as trial on each and every date 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 as well as trial;

(iv) That the petitioner shall not jump over the bail and shall inform, in writing, regarding change of address, land line number and/or mobile number, if any, in advance, to concerned Police Station;

(v) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected or the commission of which he is suspected;

(vi) In the event of repetition of commission of offence, bail granted in present case shall be liable to be cancelled on taking appropriate steps by prosecution/police;

(vii) That the petitioner shall not leave India without prior permission of Court;

(viii) That petitioner shall not misuse his liberty in any manner.

20 It will be open to the prosecution to apply for imposing any such other or further condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. It will also be open to the trial Court/Magistrate 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 condition 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 18.3.2013.

23 Any observation made in this order shall not affect the merits of case in any manner and will strictly confine for the disposal of this bail application filed under Section 439 of Code of Criminal Procedure 1973.

Parties are permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, they may verify the order from the High Court website or otherwise.

Petition stands disposed of.