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Judgment
Tarlok Singh Chauhan, J—All the petitioners are accused in FIR No. 14/2015, registered at Police Station, Chopal, District Shimla, on 12.03.2015, under Sections 302, 147, 148, 149, 452, 364, 436, 354, 323, 325 read with Section 506 IPC.
The respondents after having put to notice have produced the records of the investigation and have also filed the status report.
The record discloses that on 11.3.2015, complainant got recorded her statement under Section 154 Cr.P.C. with ASI Partap Singh disclosing therein that she along with her husband and three children is residing in village Tuil. At about 3.00 P.M., on 11.3.2015, she along with her husband was present in her house. Meanwhile, a stone was thrown on the head of her husband, upon which, the husband told her that people are pelting stones upon them, upon which the complainant along with children got into the house. Her husband also came inside the house. The people were pelting stones on the roof of the house. They also proclaimed that if Narvir would come out, they will not spare him. Then, the accused Bantu son of Sunder Singh, Dalip son of Jalam Singh, Bhupinder son of Sh.Roop Singh, Pappu, Kaku son of Joban Dass, Rakesh son of Lachhi Ram, Sunil son of Sant Ram, Manu son of Beer Singh, Gulshan son of Lachhi Ram, Ritu son of Joban Dass, Joban Dass, Sanu son of Bhupinder, Rajinder son of Balak Ram, Dinesh Mehta son of Mast Ram, Manu alias Sachin son of Rajinder entered in the house. After entering the house, Bhupinder son of Sh. Roop Singh caught hold of the complainant from her hair, Rinku and Kaku caught hold of the complainant from her arms. Rajinder, Sunil and Pappu tore the clothes of the complainant and they have also proclaimed to molest her. Ritu was having stone in his hand and he inflicted injuries on the face of the complainant. Those persons were proclaiming to the deceased Narvir that save his wife if he can. The husband of the complainant was having a gun in his hand. He tried to save the complainant, then the persons who came there inflicted Darat blow on the head of her husband. They also snatched the gun. In that process, the bullet got fired and hit Bantu son of Sh. Sunder Singh. Thereafter, all those persons dragged the husband of the complainant out of the house along with the person who sustained the bullet injuries. Apart from the above persons, women were also present there. All of them have beaten the husband of the complainant. One Surinder Nepali had inflicted the axe blow on the husband of the complainant. They dragged the husband of the complainant towards the fields. She also got recorded the names of the accused Rama Nand son of Mahi Ram, Bantu son of Rama Nand, Yashu son of Ram Lal, Yashu son of Gian Singh, Man Singh son of Kumbia, Prince Mohan son of Man Singh, Dimple son of Man Singh, Dimple son of Ishri Nand, Virender son of Sh. Roshan Lal, Devinder son of Roshan Lal, Inder Singh son of Sh. Roshan Lal, Pankaj son of Daulat Ram, Sanjay son of Daulat Ram, Ravi son of Mangat Ram, Vishal son of Sandeep, Sandeep son of Sh. Sohan Singh, Nikhil son of Sh. Sandeep, Pinku son of Bhindru, Kundan Singh son of Jalam Singh, Vir Singh son of Sh. Mehar Singh, Sunder Singh son of Sh. Mehar Singh. She further recorded that when her husband was dragged by the above persons, then after sometime, the accused Daleep, Pradeep, Bhupinder, Surinder Nepali, Sunil, Manoj, Rajinder came to the house of the complainant and told her that they had killed her husband and had thrown his dead body in the rivulet. They have also proclaimed that they will burn the complainant as well as her children. They also sprinkled kerosene oil on the grass and wood lying on the rear side of the house and set the same on fire. On all these allegations the complainant prayed that action be taken against them.
On the basis of the said statement of the complainant, the police machinery swung into motion and registered F.I.R. No. 14/2015 under Sections 302, 147, 148, 149, 452, 364, 436, 354, 323 and 506 of the Indian Penal Code.
The police searched for Narvir Thakur on 11/12.3.2015, but he was not found. On 12.3.2015, the spot was videographed. The other codal formalities were completed on the spot. On 12.3.2015, the dead body of Narvir was found in the jungle. The dead body was taken into possession and the same was sent for postmortem examination. On 16.3.2015 some of the bail applicants surrendered before the police. They were arrested and were medico legally examined. During the course of investigation on 19.3.2015, the accused Kundan Singh and Dalip Singh made a statement under Section 27 of the Indian Evidence Act and Kundan Singh got recovered the axe and Dalip Singh got recovered the clothes which he had worn at the time of incident.
Some of the accused had earlier approached this court for grant of regular bail, but the same was declined by this court vide order dated 18.5.2015.
However, these petitions have now been filed claiming therein that there are changed circumstances, inasmuch as now the final report, under section 173 Cr.P.C. has been submitted to the court of competent jurisdiction and based upon the investigation conducted by the investigating agency after registration of the case, there is hardly any iota of evidence establishing the complicity of the petitioners in the commission of the offence. It is also averred that the investigation is complete and the petitioners are no more required by the police in connection of the offence.
It is further averred that in the final report presented after the investigation, the story as now put forth by the prosecution is different from what had earlier been stated by the complainant and the exaggeration, omission and improvements made by the complainant from time to time are themselves sufficient to fortify these submissions, as the main object of the complainant was to rope in the entire village.
The petitioners have, in particular, invited my attention to the statements recorded of the complainant Virendra Devi, alleged eye witness Prem Singh, the daughter of the complainant and the brother-in-law of the deceased to contend that save and except for an omnibus allegation against the petitioners, there is no specific overt act leveled against any one of them. It is further contended that the entire problem arose on account of the gun-shot fired by the deceased himself and that it has come on record that there was an irate mob consisting of more than 100 people, who are alleged to have attacked the complainant and her deceased husband. It is further submitted that the petitioners have been named only because they were allegedly seen in the mob.
I have heard learned counsel for the parties and have gone through the records of the case.
Ms. Meenakshi Sharma, learned Additional Advocate General has raised preliminary objection regarding the maintainability of these petitions on the ground that there is no change in the circumstances. She in support of her submission has relied upon Gurcharan Singh and Others Vs. State (Delhi Administration), AIR 1978 SC 179 : (1978) CriLJ 129 : (1978) 1 SCC 118 : (1978) SCC(Cri) 41 : (1978) 2 SCR 358 , Shri Gurbaksh Singh Sibbia and Others Vs. State of Punjab, AIR 1980 SC 1632 : (1980) CriLJ 1125 : (1980) 2 SCC 565 : (1980) SCC(Cri) 465 : (1980) 3 SCR 383 , State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 : (1989) CriLJ 2317 : (1989) 3 Crimes 495 : (1989) 4 JT 1 : (1989) 2 SCALE 707 : (1989) 2 SCC 605 Supp : (1989) 1 SCR 315 Supp : (1990) 1 UJ 192 , State of Gujarat Vs. Salimbhai Abdulgaffar Shaikh and Others, AIR 2003 SC 3224 : (2003) CriLJ 4348 : (2003) 7 JT 550 : (2003) 7 SCALE 253 : (2003) 8 SCC 50 : (2003) 3 SCR 414 Supp : (2004) 1 UJ 159 : (2003) AIRSCW 4594 : (2003) 6 Supreme 484 , State Vs. Amarmani Tripathi, AIR 2005 SC 3490 : (2005) CriLJ 4149 : (2005) 8 JT 517 : (2005) 7 SCALE 489 : (2005) 8 SCC 21 : (2005) 1 SCR 454 Supp : (2005) AIRSCW 4763 : (2005) 6 Supreme 492 , Rajesh Ranjan Yadav @ Pappu Yadav Vs. CBI through its Director, AIR 2007 SC 451 : (2007) CriLJ 304 : (2006) 11 SCALE 551 : (2007) 1 SCC 70 : (2006) 9 SCR 40 Supp : (2006) 2 UJ 1536 , Prasanta Kumar Sarkar Vs. Ashis Chatterjee and Another, AIR 2011 SC 274 : (2011) CriLJ 302 : (2010) 12 JT 45 : (2010) 11 SCALE 408 : (2010) AIRSCW 6699 : (2010) 7 Supreme 674 , Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, AIR 2011 SC 312 : (2011) 1 Crimes 109 : (2011) 1 RCR(Criminal) 126 : (2010) 12 SCALE 691 : (2011) 1 SCC 694 : (2011) 1 SCC(Cri) 514 : (2011) AIRSCW 3813 : (2010) AIRSCW 7007 : (2010) 7 Supreme 194 : (2010) 8 Supreme 353 and Govind Sagar Vs. State of Himachal Pradesh .
I am afraid that this submission of the learned Additional Advocate General cannot be accepted for the simple reason that on the earlier occasion a number of bail applications have been rejected by this court at the stage when the case was still under investigation. But now admittedly the FIR has culminated into a challan. Therefore, it is not the contents of the FIR alone which can be read, but the FIR now has to be read along with the material gathered by the investigating agency during the course of the investigation.
This court in Cr. M.M.O. No. 183 of 2014 titled Nancy Bhatt and another vs. State of H.P. decided on 6.4.2015, was dealing with the case wherein the FIR had culminated into a charge sheet and this court held as follows:--
"7. Admittedly the FIR is not a substantive piece of evidence. It is information of a cognizable offence given under Section 154 of the Code of Criminal Procedure (for short ''Code''). The legislature in its wisdom under the provisions of the Code has given limited/restrictive power to the Court to intervene at the stage of investigation by the police. Investigation is the exclusive domain of the police. Ordinarily, it is only when the charge sheet is filed that the Court is empowered either to take cognizance and to frame charge or to refuse to do the same.
The FIR is the sheet anchor on the basis of which the investigation ensues. However, once the FIR on the basis of which the investigation was initiated has culminated into a chargesheet, the FIR does not remain the sheet anchor because the same alone then cannot be read and has to be read along with the material gathered by the investigating agency during the course of the investigation.
It would, therefore, not be permissible for this Court to quash the FIR or else that would amount to annihilating a still born prosecution by going into the merits on the plea of proof of the prima facie case. Further, adverting to those facts and giving findings on merits would otherwise result in the grossest error of law because this Court in exercise of its jurisdiction under Section 482 of the Code cannot undertake pre-trial of a criminal case."
The aforesaid principles squarely apply to the present case and, therefore, once the challan has been submitted it is not permissible for the court to read only the contents of the FIR and ignore the other material, which has been gathered by the investigating agency during the course of the investigation on the basis of which the challan has been presented in the court of competent jurisdiction.
In case the records of the investigation are perused, it is more than established that the weapon(s) of offence have not been recovered from any of the petitioners herein. Further, in case the nature of injuries and the records of death of the deceased is seen, then it is legitimate at this stage to assume that the same may have been caused in the mode and manner as set out in the MLC and, therefore, the death obviously has been caused by use of some weapon. Therefore, its recovery does assume great significance in the instant case.
The petitioners are right in contending that only an omnibus allegation has been made against them to the effect that they on 11.03.2015 along with other co-accused entered the house of the complainant and gave her and her husband beatings, dragged the deceased and kept on beating him and dumped him about a kilometre away. This allegation is common to Rinku alias Shyam Lal, Sanjeev alias Sonu, Man Singh son of Kumbh Dass, Vishal alias Chhotu, Prince Mohan, Devender, Ramanand, Ashish and Sandeep.
Insofar as Manoj alias Manu and Bhupinder are concerned, apart from common allegations as set out above, it is further alleged that these two persons had proclaimed before the house of the complainant that they killed her husband, threw him in a ''Nala'' and would now set her house on fire. There is additional allegation against Vishal and Nikhil that they gave beatings to the deceased when they had dragged him in the ''jungle''. That apart, an additional allegation has been leveled against Ramanand to the effect that he was seen while carrying diesel in a steel bucket and had tried to set the house of the complainant on fire.
It is the case of the prosecution itself that the weapon of offence used in the offence comprised of two axes, two ''khonchas'' and dandas. The only overt act attributed to the petitioners has already been set out above. When these allegations are cross-checked with the version of the complainant given in her statements recorded at five different times coupled with the statements of Prem Singh, Kumari Bhisham, who is none other than the daughter of the deceased and Surinder Thakur brother of the deceased, the aforesaid allegations are not corroborated and cannot therefore be taken at their face value and have to be taken with a pinch of salt.
Concededly, the petitioners were not armed with any weapon nor have any recoveries been effected from either of them. Though, the prosecution after investigation was expected to file a challan under Section 173 Cr.P.C. clearly comprehending and spelling out explicitly the exact role of each of the accused in this case. But as observed earlier, there are 28 accused in this case against each one of whom only an omnibus allegation has been set out in the charge-sheet. Under such circumstances, all the accused cannot be painted with the same brush and it is difficult to comprehend at this stage that all the accused are guilty of an offence punishable under Section 302 IPC.
No doubt, the accused are also sought to be implicated with the help of Section 149 of the IPC, but then the Hon''ble Supreme Court has clearly warned the Courts to consider with great care and caution these provisions because over implication in the cases is a matter of common knowledge and concern. The Hon''ble Supreme Court in Siddharam Satlingappa Mhetre Vs. State of Maharashtra and Others, AIR 2011 SC 312 : (2011) 1 Crimes 109 : (2011) 1 RCR(Criminal) 126 : (2010) 12 SCALE 691 : (2011) 1 SCC 694 : (2011) 1 SCC(Cri) 514 : (2011) AIRSCW 3813 : (2010) AIRSCW 7007 : (2010) 7 Supreme 194 : (2010) 8 Supreme 353 while laying down certain guidelines and parameters to be taken into consideration while dealing with the anticipatory bail, has held:--
"112......(vii) The courts must evaluate the entire available material against the accused very carefully. The court must also clearly comprehend the exact role of the accused in the case. The cases in which accused is implicated with the help of sections 34 and 149 of the Indian Penal Code, 1860 the court should consider with even greater care and caution because over implication in the cases is a matter of common knowledge and concern.......;"
This Court in Jeet Ram versus State of H.P. Latest HLJ 2003(1)(HP) 23 was dealing with a case for grant of anticipatory bail involving Sections 302 and 149 IPC and it was held as under:--
"5. It was contended by the learned Counsel for the accused that the prosecution version that the deceased was caught hold by three bail petitioners and two of their co-accused pelted stones at him is unbelievable and as per the material on record particularly the First Information Report it cannot be said that the accused had either the common intention or common object to kill the deceased. None of them is alleged to have inflicted any injury on the person of the deceased and even according to the prosecution they were not armed with any weapon which clearly negatives the prosecution al-legation that the accused, along with their co-accused, acted in furtherance of common object of killing Ramesh. It was further contended by the learned Sessions Judge, while dealing with the bail applications of the accused persons, has also observed that there is reasonable force in the contention raised for the accused that the question regarding application of Section 149 of the Indian Penal Code is debatable. It was further contended that the learned Sessions Judge denied the bail to the accused persons mainly for the reason that the possibility of retributory action by or at the instance of the complainant party could not be ruled out at this stage if the accused persons are enlarged on bail. However, such an apprehension is no reason for curtailing the liberty of the accused who in the facts and circumstances of the case are entitled to be released on bail.
On the other hand, the learned law Officer has contended that there is evidence on record to prima facie show that the accused persons and their co-accused had the common object to kill the deceased and it was in furtherance of such common object that Bhupender caused fatal injury to the deceased, therefore, the accused are involved in the commission of grave offences for which severe punishment is provided in law, therefore, they should not be released on bail. It was further contended that the atmosphere in the village and in adjoining areas is surcharged and, if released on bail, the lives of the accused may be in danger at the hands of the people of the area and their release may create law and order situation. Therefore, they are not entitled to be released on bail.
As is the case of the prosecution, the only role attributed to the accused persons is that they caught hold of the deceased and their co-accused Savitri and Bimla pelted stones at him and thereafter Bhupender gave him the fatal blow with a ''Draft''. Prima facie it is difficult to believe that when a person is caught hold of by three persons two other persons are pelting stones at him, then such person and those persons who have caught hold of him will not sustain any injury. Therefore, the version regarding pelting of stones and holding of the deceased is prima facie clouded by suspicion as none of the accused persons who are alleged to have caught hold of the deceased while co-accused Savitri and Bimla were pelting stones at the deceased did not receive any injury whatsoever and no injury caused by the pelting of stones was found on the per son of the deceased. Mere catching hold of the deceased by the accused persons may not necessarily lead to the conclusion that they haw the common object of killing the deceased as the applicability of Section 149 IPC, in the facts of the case, is a debatable question.
In Thakar Singh etc. Vs. The State of Punjab, (1969 Current Law Journal 810) (relied upon by the learned Counsel for the accused persons to substantiate his contention) wherein the case of the prosecution was that accused Niranjan Singh caught hold of the deceased and fell him down and accused Thakar Singh throttled his neck, the Punjab and Haryana High Court held as under:
"........ It is not a case in which it can be legitimately contended on behalf of the prosecution that there was any pre-planned common intention on the part of both Niranjan Singh and his father Thakar Singh in throttling the deceased. There could be no such intention on the part of Niranjan Singh even in executing his act of catching hold of the boy by the arms and throwing him down on the ground. The act of throttling by Thakar Singh followed per se and was independent of the act of throwing the boy down by Niranjan Singh. Thus, there is no community of intention in the act performed by Niranjan Singh and that executed by Thakar Singh. The two are distinct ones and one has nothing to do with the other. No intention on the part of Niranjan Singh from his act could be inferred in common with the intention of throttling by Thakar Singh, which followed later on. It is not a case in which it could be held that throwing down was committed by Niranjan Singh in furtherance of the common intention of throttling by Thakar Singh. Thus, the applicability of Section 34 of the Indian Penal Code is uncalled for. Niranjan Singh appellant could not be held vicariously liable by virtue of that Section. This is additional ground of his being entitled to acquittal."
In Jaspal Singh Vs. The State of Haryana, (1986 (2) Recent C.R. 582) wherein one of the accused caught hold of the deceased while armed with a stick but did not cause any injury to the deceased whereas his co-accused caused injuries to the deceased which resulted in his death, the Punjab and Haryana High Court granted bail to the accused who had only caught hold of the deceased while on the following premise:
"Though the motive was with the petitioner and he caught hold of the deceased while armed with a stick, he did, not cause any injury to the deceased. Rather his co-accused did cause injuries to the deceased which resulted in his death. In this situation, applicability of Section 34 Indian Penal Code is a moot point. It would thus be apt that the petitioner gets the concession of bail."
In Kuldip Singh Vs. State of Punjab, (1994 (3) Recent C.R. 137) where one of the accused inflicted the injury on the head of the injured with sharp edged weapon and the second accused gave ''Lathi'' blow on his shoulder causing simple injury allegedly with the common intention of accused in an attempt to commit the murder of the injured, the Hon''ble Supreme Court held that the injury on the head of the injured was serious one and proved to be grievous, therefore, the offence under Section 307 I.P.C. is made out against Kuldip Singh who caused such injury but in so far as the other co-accused is concerned, he inflicted only one blow on the shoulder with the ''Lathi'' causing swelling, therefore, it could not be said that he shared the common intention along with the Kuldip Singh in attempt to commit the murder of the injured.
Keeping in view the above position in law and the role attributed to the accused persons and the facts and circumstances of the case, bail cannot be denied to the accused persons on the sole ground that they are involved in the commission of an offence under Section 302, I.P.C. by virtue of being members of the alleged unlawful assembly.
There is no doubt that offence punishable under Section 302 I.P.C. is a grave offence for which the extreme penalty of death has been provided in law. However, the mere gravity of the offence and the severity of punishment is no ground for rejection of bail, while deciding the question of grant or refusal of the bail, other factors such as the nature of evidence, the part played by the accused in the commission of the offence and the likelihood of the accused absconding or, tampering with prosecution evidence has also to be taken into account."
It can also not be lost sight of that majority of the petitioners have been in custody from more than four months and have no bad antecedents or criminal history. In fact, most of them have even surrendered of their own. That apart, though report under Section 173 Cr.P.C. has been submitted to the Court of competent jurisdiction, but there are certain accused who are stated to be absconding and have not surrendered as yet and against whom a supplementary report would be required to be filed. The whole process is likely to take considerable time and would ultimately result in delay in concluding the trial. Therefore, this is another factor and rather an important factor which has to be considered while deciding whether to grant bail.
In State of Kerala Vs. Raneef, AIR 2011 SC 340 : (2011) CriLJ 982 : (2011) 1 Crimes 177 : (2011) 1 JCC 293 : (2011) 1 JT 10 : (2011) 1 RCR(Criminal) 381 : (2011) 1 SCALE 8 : (2011) 1 SCC 784 : (2011) 1 SCC(Cri) 409 : (2011) 1 SCR 590 : (2011) AIRSCW 5939 : (2011) AIRSCW 306 : (2011) 1 Supreme 65 : (2011) 6 Supreme 476 it was held as under:
"12 (4) In deciding bail applications an important factor which should certainly be taken into consideration by the Court is the delay in concluding the trial. Often this takes several years, and if the accused is denied bail but is ultimately acquitted, who will restore so many years of his life spent in custody? Is Article 21 of the Constitution, which is the most basic of all the fundamental rights in our Constitution, not violated in such a case? Of course this is not the only factor, but it is certainly one of the important factors in deciding whether to grant bail."
This court need not delve any further, lest it causes prejudice to the case of either of the parties more particularly the prosecution. But taking into account all the facts and circumstances and also taking into consideration the records of the investigation, as also the contents of the final report, this court is of the considered view that petitioners have been able to carve out a case for grant of bail. The petitioners otherwise are the permanent residents of Tehsil Chopal, District Shimla and there is hardly any reason to believe that they would either jump the bail or flee from justice.
Accordingly, all the petitions are allowed, however, subject to the following stringent conditions:--
i) Since all the petitioners are lodged at Kaithu Jail, Shimla, therefore, they shall be released on bail, if not required to be detained in any other case, on executing bail bond in the sum of Rs. 1,00,000/- (one lac) each with two sureties each of the like amount to the satisfaction of any Judicial Magistrate First Class stationed at Shimla, District Shimla out of whom one of the surety shall be the father/mother/brother/close relative of the petitioner(s).
ii) The petitioner(s) shall surrender their pass-port(s), if any, before the learned trial Magistrate, while executing the bail bond(s).
iii) The petitioner(s) shall not get involved in any offence during the period of his/their bail.
iv) The petitioner(s) shall not until and otherwise ordered except with the permission of the learned Magistrate leave the territory of Himachal Pradesh.
v) They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever.
vi) They shall not 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 the Court or the Police Officer.
vii) In case any of the above condition is violated, the bail granted hereby is liable to be cancelled for which the Investigating Officer may move an application before this Court.
The learned Judicial Magistrate First Class, Shimla, 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.
Any observation made hereinabove shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made hereinabove. The Registry is directed to place a copy of this judgment on the files of connected matters.
Petitions stand disposed of.