Dharam Singh vs State of Jammu and Kashmir

B.L. Bhat, J.—Dharam Singh, who figures as accused in sessions case titled State v. Amitabh and Ors. for offence punishable under

Sections 302, 307, 324, 149, 450 and Section 120B RPC pending decision before the learned Additional Sessions Judge-Doda, has sought

indulgence of this court for grant of bail pending decision in the case when his attempt for this relief aborted before the trial court.

The incontroverted facts are that the Investigating Agency came to lay charge sheet against the accused including the petitioner alleging therein

that the petitioner, who used to proclaim before the deceased Om Parkash that he has converted the area below the village Tund road as

Dharampur colony/Nagar and wants to convert the upper side of this road also into this colony where the house of the deceased exists. Thereafter

deceased Om Parkash came to be engaged with one Lalita Devi daughter of Param Ram R/o Bhajwa who happens to be cousin sister of accused

Amitabh and the marriage date for Malmahandi (local ceremony) which is held before the date of Mahandi Raat, was fixed on 28.06.2001. The

petitioner/accused Dharam Singh entered into criminal conspiracy with the remaining accused namely Amitabh, Jogesh Kumar, Rajinder Singh and

Abdul Latif who were working as SPOs and were posted in District Police Lines, Doda for eliminating Om Parkash and promised to pay them Rs.

1.00 lac after the task is finished. In the evening of 26.6.2001, the remaining accused namely Amitabh and Jogesh, who were armed with AK Rifle

and accused Abdul latif and Rajinder Kumar who were carrying hand grenades, tres-passed into the house of deceased Om Parkash when

religious songs before the marriage were being sung at his house. Accused Amitabh and Jogesh Kumar inflicted gun shot on the person of the

deceased Om Parkash, at the same time, the accused fired gun shot on the person of Ram Singh son of Thakar Singh from their respective rifles,

which they were armed, when Ram Singh was trying to establish their identity. Thereafter accused Abdul Latif and Rajinder Kumar caused blasts

after throwing grenades towards the house of the deceased. Finally, all these persons managed to escape. It is further alleged that at the time of

occurrence, the petitioner/accused was standing near the electric transformer of the village located near the house of the deceased Om Parkash.

Both Om Parkash and Ram Singh succumbed to the injuries.

It appears that after the committal of the case, the petitioner as well as the remaining accused came to be charge-sheeted by the trial court for

offences under Sections 302, 307, 324, 149, 450 and Section 120B RPC to which the accused pleaded not guilty. At this stage, the case is

pending for recording prosecution evidence.

Heard Mr. R.S. Thakur, learned counsel for the petitioner and S.C. Gupta, AAG representing the State-respondent.

It is submitted by Mr. R.S. Thakur, Senior Advocate that the petitioner Dharam Singh has been roped in the case with the aid of Section 120B

RFC. The only allegation against him is that to have hatched criminal conspiracy with the remaining accused to eliminate the deceased Om Parkash

for which he promised to pay them Rs. 1.00 lac after finishing of task. Section 120A RPC defines criminal conspiracy and Section 120B provides

for its punishment. The essentials of criminal conspiracy as defined u/s 120A RPC are; (1) that there must be an agreement between the persons

who are alleged to hatch conspiracy; and (2) that the agreement should be:

(i) for doing of an illegal act, or

(ii) for doing by illegal means an act which may not itself be illegal.

Thus, to constitute the offence of criminal conspiracy, there must be an agreement between two or more persons to do an act which is illegal

from its very inception or which is done by illegal means. The gist of the offence of the conspiracy is an agreement to break the law that is to say to

commit the offence.This gist of offence of the criminal conspiracy lies not in doing the act or effecting the purpose for conspiracy is formed nor an

attempt to do an act nor in inducing other to do but in the forming of the scheme or agreement between the parties.His further contention is that the

prosecution in the bids to substantiate the case against the accused which includes the petitioner as well has examined 23 witnesses out of listed 30

witnesses and out of 8 listed eye witnesses, 6 witnesses namely Tej Ram, Gulu Devi, Thakar Singh, Thakri Devi, Shakti Devi and Balwan Singh

have been examined. Darshna Devi, listed eye witness has been declared as incompetent witness by the trial court and other listed eye witnesses

namely Bhagat Ram and Rakesh Kumar have been given up by the prosecution. Listed eye witnesses examined by the prosecution before the trial

court have not deposed a word against the petitioner in as much as their version about the involvement of the petitioner in the offence is

inadmissible and shaky. Thus, making their evidence unworthy of any credit, cannot be used against the petitioner in proving his guilt.

On the other hand, the learned AAG without controverting the contention of the learned counsel for the petitioner has submitted that the accused

stands charge-sheeted for the offences, which includes murder and criminal conspiracy to commit an offence of murder for which the only

punishment provided is death sentence or life imprisonment. Therefore, the case of the petitioner falls within the restriction imposed u/s 497 Cr.PC

that is to say ""he should not so released, if there are reasonable grounds for believing that he has been guilty of an offence punishable with death or

life imprisonment."" Therefore, prayer of the accused for grant of bail, may be turned down.

Considered the rival contentions of the learned counsel for the parties. I am afraid that at this stage of the case when it is pending for recording

the prosecution evidence, any comment on the pleas and counter pleas raised by the parties, may prejudice the case of either of the parties.

However, suffice it is to say that a case is made out for releasing the accused/petitioner on bail. Thus, the petition is allowed and it is ordered that if

the petitioner/accused furnishes bail and personal bonds to the tune of Rs. 1.00 lac with two sureties to the satisfaction of the Trial Judge, he shall

be released on bail with the following conditions:-

(a) He shall not flee from the trial of the case.

(b) He shall not tamper the prosecution evidence or make any attempt to win over the prosecution witnesses; and

(c) He shall not leave the limits of District Doda without the prior permission of the trial court.

In the event of violation of any of the aforesaid conditions, his bail and personal bonds shall stand forfeited to the State of Jammu and Kashmir.