Bhupinder Kumar vs State Of Himachal Pradesh

Rakesh Kainthla, J

The petitioner has filed the present petition for seeking regular bail. It has been asserted that FIR No. 54/2022, dated 11.6.2022 was registered against the petitioner at Police Station Kotkhai, District Shimla, H.P. The petitioner has been in judicial custody for more than one year. The police have filed the charge sheet and the matter was listed for consideration on charge on 7.8.2023; however, no charges were framed against the petitioner. The petitioner is the sole bread earner of the family and keeping him behind bars is not justified. No purpose would be served by detaining the petitioner in Judicial custody. The petitioner would abide by all the terms and conditions, which may be imposed by the Court. Therefore, it was prayed that the present petition be allowed and the petitioner be released on bail.

The police filed multiple status reports. It was asserted in the latest status report that the police were informed that Baba Shiv Narayan was not picking up his mobile. The police searched but could not trace him. Subsequently, an e-mail was received in which it was mentioned that the mobile phones of Baba were operating in Punjab. The police obtained the call details record, checked the CCTV Footage and found that the vehicle of Baba had moved towards Chandigarh. It was also found that money was being withdrawn at Chandigarh/Mohali from Baba’s account. The police obtained the CCTV footage of the ATMs from where the money was withdrawn. The mobile phones were put on the tracking and it was found that a SIM issued in the name of Ravinder Kumar was being used in the mobile phone of Baba. It also had an alternative number issued in the name of Pradeep Singh. The police checked the record of Raghukul Guest House owned by Pradeep Singh and found that Ravinder Singh had stayed in the guest house from 11.6.2022 till 13.6.2022 and from 14.6.2022 till 16.6.2022. The CCTV Footage of the guest house was checked and the person who was withdrawing the money from the ATM was found to be the same who was staying in the guest house. The police seized the record of the guest house. The other mobile phone was tracked and it was found to be using SIM issued in the name of Dharminder. The location of the mobile phone was found near Kot, Baleyan, Theog on 5.6.2022 when Baba was found missing. The police found that the account number linked to the mobile phone of Dharminder had a deposit of Rs. 3.00 lacs between 15.6.2022 and 16.6.2022 and a withdrawal of Rs. 1,70,000/- through cheque. The police arrested Dharminder, who admitted that he, his brother Ravinder and Bhupinder, the present petitioner, came to Kotkhai and murdered Baba. They transported the dead body in a vehicle of Baba and threw it at Giripul. The dead body was recovered pursuant to the disclosure statement, which was identified by the younger brother of Baba. Police checked the CCTV footage and found that an Alto car was coming from Chandigarh to Shimla in which three persons were sitting. Police seized the CCTV footage. It was also found that Dharminder, Ravinder and Bhpinder had stayed in Hotel HC Punjab Inn Balongi, Mohali (Punjab) from 6.6.2022. The record was seized. It was found that Bhupinder was operating the mobile phone issued in the name of Kalawati. The location of the mobile phone was found to be in Shimla. Subsequently, the mobile phone was switched off on 8.6.2022. Earlier the SIM issued in the name of Bhupinder was used in the same mobile phone. The police also arrested Ravinder and recorded the statement of Suman Bisht, who stated that she had handed over the mobile number to Ravinder. Bhupinder was also arrested. The statement of Ravinder was recorded under Section 27 of the Indian Evidence Act and the vehicle of Baba was recovered from Balongi (Mohali). Ravinder and Bhupinder identified the place where they had murdered the Baba. Rs. 2.00 lacs were recovered at the instance of Ravinder from Vijay Sethi. Police found after the investigation that Dharminder, Bhupinder and Ravinder had conspired to kill Baba. Baba had registered an FIR against Ravinder and Ravinder was annoyed due to this fact. They murdered Baba, brought his dead body into a jungle and carried the vehicle of Baba to Chandigarh (Mohali). They stayed in Hotel HC Punjab Inn. Ravinder withdrew the money from the ATM. The challan was prepared and presented before the Court.

I have heard Ms. Kanta Thakur, learned Counsel for the petitioner and Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State.

Ms. Kanta Thakur, learned Counsel for the petitioner submitted that the petitioner is innocent and he was falsely implicated. The prosecution asserted that the petitioner was using the SIM issued in the name of Kalawati but the statement of Kalawati was not recorded by the police. Nothing was recovered at the instance of the petitioner. Showing the place where Baba was murdered did not lead to the discovery of any fact and is inadmissible under Section 27 of the Indian Evidence Act. Therefore, she prayed that the present petition be allowed and the petitioner be released on bail.

Mr. Prashant Sen, learned Deputy Advocate General for the respondent-State submitted that there is sufficient material on record to connect the petitioner with the commission of crime. Dharminder had made a disclosure statement showing the involvement of the petitioner. The petitioner was found travelling in the vehicle towards Shimla and the same vehicle was seen following the vehicle of Baba after the incident. The location of the mobile phone of the petitioner was also found near the place of the incident and he was staying with the other co-accused after the incident. These facts, prima facie, show the involvement of the petitioner with the commission of the crime. Therefore, he prayed that the present petition be dismissed.

I have given considerable thought to the submissions at the bar and have gone through the records carefully.

The Hon’ble Supreme Court discussed the parameters for granting the bail in Bhagwan Singh v. Dilip Kumar, 2023 SCC OnLine SC 1059 as under:-

The grant of bail is a discretionary relief which necessarily means that such discretion would have to be exercised in a judicious manner and not as a matter of course. The grant of bail is dependent upon contextual facts of the matter being dealt with by the Court and may vary from case to case. There cannot be any exhaustive parameters set out for considering the application for a grant of bail. However, it can be noted that;

(a) While granting bail the court has to keep in mind factors such as the nature of accusations, severity of the punishment, if the accusations entail a conviction and the nature of evidence in support of the accusations;

(b) reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the Court in the matter of grant of bail.

(c) While it is not accepted to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought to be always a prima facie satisfaction of the Court in support of the charge.

(d) Frivility of prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to have an order of bail.

We may also profitably refer to a decision of this Court in Kalyan Chandra Sarkar v. Rajesh Ranjan @ Pappu Yadav (2004) 7 SCC 528 where the parameters to be taken into consideration for the grant of bail by the Courts have been explained in the following words:

“11. The law in regard to grant or refusal of bail is very well settled. The court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant.

(c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh [(2002) 3 SCC 598: 2002 SCC (Cri) 688] and Puran v. Rambilas [(2001) 6 SCC 338: 2001 SCC (Cri) 1124].)”

A similar view was taken in State of Haryana vs Dharamraj 2023 SCC Online 1085, wherein it was observed:

A foray, albeit brief, into relevant precedents is warranted. This Court considered the factors to guide the grant of bail in Ram Govind Upadhyay v. Sudarshan Singh, (2002) 3 SCC 598 and Kalyan Chandra Sarkar v. Rajesh Ranjan, (2004) 7 SCC 528. In Prasanta Kumar Sarkar v. Ashis Chatterjee, (2010) 14 SCC 496, the relevant principles were restated thus:

‘9. … It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:

(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

(ii) nature and gravity of the accusation;

(iii) severity of the punishment in the event of conviction;

(iv) danger of the accused absconding or fleeing, if released on bail;

(v) character, behaviour, means, position and standing of the accused;

(vi) likelihood of the offence being repeated;

(vii) reasonable apprehension of the witnesses being influenced; and

(viii) danger, of course, of justice being thwarted by grant of bail.’

There is no direct evidence against the petitioner.

The status report shows that a vehicle bearing registration no. CH-03E-0847 was found coming towards Shimla in which two persons were sitting on the front seat and one person was sitting on the rear seat. This vehicle was seen following the vehicle of Baba on 6.6.2022 towards Chandigarh. Nowhere has it been stated in this report that the person sitting in the vehicle was identified to be the present petitioner. Merely because three persons were sitting in the vehicle cannot lead to an inference that the petitioner was occupying that vehicle.

The other circumstance relied upon by the prosecution is that Dharminder, Ravinder and Bhupinder stayed together in Hotel HC Punjab Inn and an entry was made at Serial No.25. The copies of the Aadhar card of the petitioner were found in the record of the hotel. It is the admitted case of the prosecution that Ravinder, Bhupinder and Dharminder are known to each other. Thus, the mere circumstance that the petitioner had stayed with Dharminder and Bhupinder cannot lead to an inference that he is involved in the murder of Baba.

The prosecution has also relied upon the fact that the mobile phone was found in Shimla on 5.6.2022. It is an admitted case that the SIM was issued in the name of Kalawati. The statement of Kalawati has not been recorded to show that she has handed over the mobile phone to the petitioner. It was stated that the SIM issued in the name of the petitioner was being used w.e.f. 5.10.2021 till 3.11.2021 and 5.3.2022 till 6.3.2022. Even this material is insufficient to show that the petitioner was using the mobile phone on the date of incident. There is no evidence that the mobile phone had travelled beyond Shimla on the date of the incident. The incident had taken place at Kotkhai, much beyond Shimla, therefore, this evidence does not connect the petitioner with the commission of the crime.

Reliance was placed upon the statement of the co-accused; however, this statement is not a legally admissible piece of evidence. Reliance was also placed upon pointing out the place where Baba was murdered, however, this pointing out did not lead to the discovery of any fact and it is doubtful that the same would be admissible under Section 27 of the Indian Evidence Act.

Therefore, there is insufficient material on record to connect the petitioner with the commission of an offence punishable under Section 302 of IPC. Hence, the petitioner is entitled to bail.

Keeping in view the above considerations, the present petition is allowed and the petitioner is ordered to be released on bail in the sum of Rs. 1.00 lac with one surety of the like amount, to the satisfaction of the learned Trial Court. While on bail, the petitioner will abide by the following conditions:

(i) The petitioner will join the investigation as and when directed to do so by means of a written hukamnama.

(ii) The petitioner will not intimidate the witnesses nor will he influence any evidence in any manner whatsoever.

(iii) The petitioner shall attend the trial in case a charge sheet is presented against him and will not seek unnecessary adjournments.

(iv) The petitioner will not leave the present address for a continuous period of seven days without furnishing the address of an intended visit to the SHO of the concerned Police Station and the Trial Court.

(v) The petitioner will furnish his mobile number, and social media contact to the Police and the Court and will abide by the summons/notices received from the Police/Court through SMS/WhatsApp/Social Media Account. In case of any change in the mobile number or social media accounts, the same will be intimated to the Police/Court within five days from the date of the change.

It is expressly made clear that in case of violation of any of these conditions, the prosecution will have the right to file a petition for cancellation of the bail.

The observation made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case.