Dalip vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, who is under arrest, on being arraigned as an accused in FIR number 19/2019 dated 9.9.2019, registered under Sections 341, 302,

201, 120(B), 34 of the Indian Penal Code, 1860, at Police Station, Pooh, District Kinnaur, H.P., disclosing non-bailable offences, has come up before

this Court under Section 439 of the Code of Criminal Procedure, seeking regular bail.

Status report stands filed. I have seen the status report, to the extent it was necessary for deciding the present petition, and heard learned Counsel

for the parties.

FACTS

The gist of the First Information Report and the investigation is that on September 9, 2019, Prakash Chand, son of Shri Tenjin, R/o Village Khab,

P.O. Namagya, Tehsil Pooh, District Kinnaur, made a report to Police Station, Pooh. Vide that report, Prakash Chand informed the Police that his son

Sonam Dorje is missing from 11:00 p.m. of September 7, 2019. He further stated that his vehicle is abandoned at a place known as Bhagat Nalla and

one tyre is deflated. After missing of his son, he stated that he alongwith family members and relatives made frantic efforts for his search, but failed

and having lost all hopes, they approached the Police Station requesting the Police to help in his search.

4 After that, on September 9, 2019, complainant Prakash Chand made a statement to the Police that on September 7, 2019, his son alongwith four

Nepalis labourers were collecting sand from nearby rivulet. He did not return home on September 7, 2019 then in the morning of next day, he reached

Pooh at a place known as Bhagat Nalla, where one of such labourer who was walking with his son Sonam Dorje met him. The said Nepali told him

that during the night of September 7, 2019, these people were collecting sand from Satluj river at Bhagat Nalla. Another team was also collecting sand

and the said team comprised of five Nepalis labourers and driver of Contractor Dila Ram. The said Nepalis people and the driver had entered into a

scuffle with Sonam Dorje as well as the labourer engaged by him. After that, they threatened him of dire consequence and proclaimed that they will

teach them a lesson. After that, Sonam Dorje alongwith his labour was proceeding towards the road and then they noticed some people standing there

with torch and sticks. They had created blockade on road by placing big boulders. At that time, his son was driving the vehicle and Himal Thapa was

sitting with him and the other Nepalis were sitting on the carriage portion of the vehicle. Himal Thapa further told Prakash Chand that his son Sonam

Dorje alighted from his vehicle and went towards these people but did not return. He further revealed that on seeing the gang, all the Nepalis labour

accompanying Sonam Dorje ran away.

Prakash Chand further told the Police that he has come to know that following persons were standing there alongwith torch and sticks, namely (I)

Dila Ram (ii) Sundoop (iii) Luxman Singh (iv) Shashi Bhushan and he also gave details and parentage of the persons. Prakash Chand further told the

Police that he is certain that these people have kidnapped his son, killed him and disposed of his body and they are involved in such offence.

He further stated that his son had earlier told him that Luxman Singh asked him not to collect sand from Bhagat Nalla and warned him with dire

consequences, if he further collects the sand. He further stated that he has recovered the slippers of his son from the banks of Satluj river. On the

basis of such information, the Police registered FIR under Sections 341, 364, 34, in which later on Sections 302, 120(B) of the Indian Penal Code have

been added. After that, the Police swung into action and recorded statements of the Nepalis labour and did further investigation. On September 24,

2019, the Police got the statement of Himal Thapa recorded under Section 164 of the Cr.PC before learned Chief Judicial Magistrate, Kinnaur at

Recong-Peo.

Himal Thapa stated in his statement under Section 154 Cr.PC that on September 7, 2019 in the evening, he accompanied by Sonam Dorje, Rajinder,

Jeevan, Harish had gone to Bhat Nalla to collect sand. He further stated that they had loaded the sand in the Pick-up Jeep No.HP-63-T-2805 . He

further stated that he (Himal Thapa) alongwith Harish stayed in Bhagat Nalla, whereas the other people went in the Jeep to unload the sand from it.

He further stated that before their Jeep could return to the Bhagat Nalla, the Jeep of Dila Ram, Contractor reached there. In the said Jeep, apart from

driver, there were three Nepalis labour, namely Amar and Dalip. He told that he did not know the name of 3rd person.

These people started lifting the sand collected by Himal Thapa and Harish and started loading the same in their Jeep. At that time, Sonam Dorje

reached there.

On reaching Bhagat Nalla, Sonam Dorje asked those people not to carry the sand collected by his people. He also gave a slap to one of the person

who were loading the Jeep.

After that, those people loaded their Jeep from other places and left. Thereafter, they loaded the sand in the Jeep of Sonam Dorje and travelled in

the Jeep to Pooh. Sonam Dorge was driving the said Jeep. Jeevan and Rajinder sat back in Bhagat Nalla to collect the sand.

He further stated that when these people reached mid way, then Jeevan made a Phone call to Sonam Dorje and told him while crying that Dila

Ram had beaten them. On this, Sonam Dorje reversed the vehicle and all these people reached Bhagat Nalla.

On reaching Bhagat Nalla, Sonam Dorje slapped those persons and warned them that why they were indulging in scuffle. On this, those people

ran away from Bhagat Nalla.

After that, all those four Nepalis labour alongwith Sonam Dorje returned in the Pick-up. They reached Pooh at 8:00-9:00 p.m. During the same

evening, these people again went Bhagat Nalla 3rd time and loaded the vehicle. At that time, the vehicle of Dila Ram came in the main road and it

stopped there.

After that, Sonam Dorje alongwith his labour came towards the main road in the Pick-up. The vehicle of Dila Ram had halted in the main road. 3-

4 people were staying on the road. One person was carrying a Danda. Those persons signaled to stop their Pick-up. They had also blocked the road

by placing boulders.

Sonam Dorje stopped the vehicle and at that time, Dila Ram reached there. Dalip Nepali was also with him. Dila Ram started talking to Sonam

Dorje and reached the main road. Out of the people who were standing on the road, on person handed over stick to Dalip. After that, Dalip inflicted a

blow with stick on the head of Sonam Dorje. On receiving the blow from the stick, Sonam Dorje fell down on the road. On seeing this, Himal Thapa

and other labour ran away from the spot. He stated that Harish, Rajinder and Jeevan alongwith him ran away from the spot after jumping from the

vehicle because they got afraid on seeking sticks in the hands of the gang.

During investigation, the Police recorded statements under Section 161 of Cr.PC of Rajinder, Jeevan Thapa and Harish Thapa, which were almost

to the similar effect. The Police recorded statement of Dalip under Section 27 of the Indian Evidence Act and recovered the pipe. After that, the

Police recovered the Pick-up and collected blood stains from it. Thereafter, the Police took the samples from the complainant Prakash Chand for

DNA profiling for matching the same with the blood recovered from the Jeep. Vide report dated January 1, 2020, the Deputy Director, DNA Division

of State Forensic Science Laboratory, Junga, H.P. opined that the DNA did not match. Subsequently the police party also complied with the

procedural requirements under the CrPC and arrested the petitioner.

ANALYSIS AND REASONING:

Mr. Ajay Kochhar, learned counsel has argued several points. His first argument is that in the first supplementary Challan, it has come in the

evidence that the Police recovered dead body of a person. Learned counsel submits that the DNA profile of the said body does not match with the

father of the deceased. As such, the entire prosecution case fails. This argument may lie during the appreciation of evidence, but not at this stage. It

was never the case that accused Dila Ram and Dalip Kumar who have come up before this Court vide these petitions, were arrested because of the

recovery of dead body. In fact, it was a case of corpus delicti. The law is well settled that if the recovery of dead body does not take place, it will not

fail the prosecution only on this ground.

The second argument of Mr. Ajay Kochhar, learned counsel, is that Himal Thapa had inflicted one blow on Dalip, whereas Dila Ram had not

caused any injury to him. As such, bail be granted on the ground of parity. This ground is again fallacious. This Court had granted bail to the other

accused on different reasons and primarily because of the lack of identification. As far as Dalip and Dila Ram are concerned, they were identified.

The time of occurrence is late night on a secluded road where there was no source of light, except the headlights of the vehicle. Witness Himal

Thapa and other witnesses namely Rajinder, Jeevan Thapa and Harish Thapa could only identify Dila Ram and Dalip Nepali. They specifically stated

that Dalip Nepali had inflicted a blow on the head of Sonam Dorje. There is no averment about identification of other persons. Consequently, whereas

the case of Dalip Nepali as well as Dila Ram, whose presence has been accepted by Himal Thapa and other labourers and especially by Himal Thapa

under Section 154 Cr.PC, would be on different footings.

The further argument of Mr. Ajay Kochhar, learned counsel is that he has been informed by the petitioner that some of the co-accused who were

granted bail by this Court had gone back to Nepal, as such, trial will be delayed because of their absence. Section 299 and other provisions of Cr.PC

have duly prescribed procedure for such kind of situation. As such, delay on this count is also not a ground where offence is heinous and more

particularly in this case it is under Section 302 of the IPC.

Mr. Ajay Kochhar, learned counsel has also argued that till now even charges have not been framed and the trial is pending fire. The legal position

points out that a person would be entitled to bail on suspension of his sentence when he had undergone half or more of the sentence. In the present

case, one of the offences is under Section 302 of the IPC where the minimum sentence is life imprisonment. As such, there is no ground for bail.

Learned counsel for the petitioner wanted to draw attention of this Court to certain documents which forms part of the police report. However,

such documents were neither annexed with the petition nor handed over to this Court. As such, in the absence of the same, it was not possible to

place reliance upon such documents.

This order does not, in any manner, limit or restrict the rights of the Police or the investigating agency from further investigation per law.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

There would no need for a certified copy of this order for furnishing bonds, and any Advocate for the Petitioner can download this order from the

official web page of this Court and attest it to be a true copy. In case the attesting officer or the Court wants to verify the authenticity, such an officer

can also verify its authenticity and may download and use the downloaded copy for attesting bonds.

The petition stands dismissed in the terms mentioned above.