Gurdhayan Singh vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Instant petition has been preferred by the petitioner, seeking anticipatory bail under Section 439 of the Code of Criminal Procedure (in short ‘Cr.P.C.), in case FIR No. 147 of 2021, dated 24.5.2021, registered in Police Station, Nalagarh under Sections 147, 148, 149, 341, 323, 307, 302, 120B, 201 IPC and 25, 29B, 30 of the Arms Act.

2 Status report filed and records also made available. Records of cross FIR No.161 of 2021 dated 15.06.2021 registered in Police Station Nalagarh, District Solan, H.P., under Sections 336, 307, 147, 148 and 149 of IPC and Section 25 of Arms Act, 1959 was also made available.

3 It transpires from the record that on 24.05.2021, FIR in present case was registered on the basis of statement made by one Rajinder Singh, recorded under Section 154 Cr.P.C., wherein it was stated that on 24.05.2021 complainant alongwith his companions namely Simran alias Simmu, Akbar alias Akku, Nazim alias Raja, Iqbal Mohammad alias Pala, Rammi, Rajan and others was going in two vehicles bearing registration Nos.HP-12M-7845 and HP12N-7845 from Bhud to Falahi Kotla and when they reached near Petrol Pump Khera, at about 3.00 p.m., some vehicles came from Nalagarh side and out of those vehicles, one black coloured Scorpio hit the car bearing registration No.HP-12M-7845, and 10-15 persons came out of other vehicles including Balbir alias Ballu, Rakesh, Avtar, Jagpal alias Kakku, Vijay Kumar alias Vishu and Bindu and they fired on the car and some of them and others were carrying swords (Kirpan and Darat etc.) and in this incident Simran alias Simmu received bullet shot in his chest whereas Avtar and Nazim received bullet injuries and complainant and Iqbal Mohammad alias Pala were also injured, however, Rammi and Rajan did not receive any injury. Thereafter, the assailants had run away from the spot in their vehicles and injured were taken to hospital, where Simran alias Simmu was declared dead. Two gunshot grievous injuries were found on the body of Akbar. Similarly two grievous bullet injuries were also found on the person of Nazim alias Raja. Whereas, Iqbal alias Pala and complainant had received blunt injuries.

4 It was also stated in the aforesaid statement by the complainant that earlier also, on 22.05.2021 at about 9.00 p.m. petitioner Iqbal Mohammad alias Pala was restrained by Jagpal and 7-8 other boys near Harison Hotel at Nalagarh and they tried to hit him with sword, but he had run away from the spot swiftly, but Jagpal and his companions had again intercepted his vehicle and had shown pistol and sword to the petitioner with threat that they would kill him and on the basis of complaint of the petitioner in this regard, a Rapat No.36 dated 22.05.2021 was entered in the Daily Diary of Police Station Nalagarh at 11.15 p.m. According to petitioners, accused party as detailed in FIR No.147 of 2021 was searching Simran alias Simmu and others to kill them and one day before the incident all of them had also visited the native village of Simran alias Simmu in his search.

5 On the basis of aforesaid complaint of Rajinder Singh, after registration of FIR, accused persons were arrested and weapons of offences were also recovered from them. Vehicles used by them as well as Car No.HP-12M-7845 were searched and inspected. As per prosecution case, during inspection of vehicles, one bullet of 8MM was recovered from Scorpio bearing registration No. HP-15E-1717 which was used by accused persons in commission of offence.

As per prosecution case, Avtar Singh is main conspirator in present case, wherein one Simran @ Simu has been murdered in sequel to a conspiracy hatched by petitioner and other co-accused. Occurrence of incident in present case is a result of chains of incidents taking place since 27th March, 2021, as on that date during Panchayat Elections co-accused Avtar Singh abused Simran @ Simu and consequently during evening of that day Simran @ Simu and his friends beat Avtar Singh regarding which a case was registered against Simran @ Simu and others as an FIR No. 93 of 2021, dated 27.3.2021 under Sections 147, 148, 149, 323, 506 IPC in Police Station Nalagath. Thereafter group of Avtar Singh beat Ashraf Ali, God brother of Simran @ Simu at Nanawal to take revenge of beating Avtar Singh. Consequently a case was registered against Avtar Singh and others as FIR No. 100 of 2021, dated 3.4.2021, under Sections 147, 148, 149, 323 and 326 IPC and Section 25 of the Arms Act, in Police Station, Nalagarh.

7 According to prosecution case, main target of Avrar Singh and his group was Simran @ Simu, therefore, co-accused Avtar Singh alongwith his companions conspired to kill Simran @ Simu and in furtherance to that conspiracy, on 22.5.2021, group of Avtar Singh had intercepted friends of Simran @ Simu and inquired them about location of Simran @ Simu with their expressed intention to kill him. Avtar Singh’s group was searching Simran @ Simu at various places wherever his presence was expected and possible and ultimately on 24.5.2021 Simran @ Simu was killed by gunshot, resulting in lodging of FIR in present case. During the same period marriage of sister of co-accused Avtar Singh was scheduled on 23-24.5.2022.

Learned counsel for petitioner has submitted that in FIR name of petitioner has been mentioned as an accused, for joining in conspiracy of other accused, who allegedly planned to kill Simran @ Simu, on the ground that some of accused persons have taken dinner in his house and their night stay arrangements were made by petitioner on 23.5.2021 and on 24.5.2021 he made arrangement for their breakfast and took them to house of his friend Toshi at Soddi Rajputan and thereafter, he participated in conspiracy hatched to kill Simran @ Simu by calling some other persons from Punjab and he took accused Devinder @ Bindu, Vijay @ Viju, Mahender Pal and Parvinder @ Manju to room where accused Rakesh Kumar etc. were staying and at that place, all of them made a plan to teach a lesson to Simran @ Simu and his friends. At that time, for receiving repeated calls from home, Avtar Singh, after hatching conspiracy, went home to Banvirpur in marriage of his sister and other accused were provided lunch by Gurdhayan Singh @ Bau and thereafter all of them left the place in search of Simran etc. and from place Mahadev, petitioner Gurdhayan Singh @ Bau was sent back to Panjhera to recky the movement of Simran @ Simu and to inform the accused persons on his arrival at Panjhera and it has been alleged that Gurdhayan Singh @ Bau was involved in conspiracy by making stay arrangements, food arrangements and recky of Simran @ Simu to kill him. He has further submitted that allegations that accused persons in present case had decided to kill Simran @ Simu or were only searching him to beat him are yet to be proved before the trial Court by proving common intention of all to commit murder and there is nothing on record or in evidence at this stage that other accused persons, in fact, had conspired to commit 8the murder and that too in presence of Gurdhayan Singh @ Bau. It has been further submitted that to make night stay arrangements and provide food to known persons can never be considered to join a conspiracy to kill someone as persons making arrangements for food etc. without knowing real motive of accused persons cannot be implicated for hatching conspiracy to commit murder. He has further submitted that petitioner was never involved in incidents taken place, for which Avtar Singh is claimed to have planned to teach a lesson to Simran @ Simu by killing him and there is no statement of involvement of present petitioner about his presence on spot or hatching any conspiracy. He has further submitted that no such planning, as alleged by prosecution, has been designed in the presence of petitioner and being a known person, he was asked to make stay and food arrangement for which he cannot be implicated as an accused to commit murder of Simran @ Simu.

9 It has been further submitted on behalf of petitioner that petitioner has been interrogated on 27.5.2021 and he has been made an accused under Section 120-B of IPC and further that in case petitioner would have been involved in conspiracy then there was no reason to leave him in village when persons, as alleged in prosecution story, were being called from Punjab on account of apprehension that Simran @ Simu might have been accompanied by large number of persons and therefore, it again substantiates that petitioner Gurdhayan Singh @ Bau was not a part of any conspiracy, as alleged.

10 It is contended on behalf of petitioner that it is a case of prosecution that co-accused Avtar Singh @ Thonu by taking advantage of marriage of his sister on 23 rd and 24th May, 2021, with intention to kill Simran @ Simu, called his companions to his village Banbirpur on 23.05.2021 and they conspired by planning to murder Simran @ Simu and instead of attending the marriage, they, equipped with iron pipies, swords, dandas and fire arms etc., went in search of Simran @ Simu and during this attempt, they reached on path leading to house of Simu at Panjhera, but despite searching and working for Simu till late night on 23.5.2021, Simu or his companions could not be traced. It was late night and Panjhera was village of maternal grandfather of accused Balbir Singh @ Billu. He contacted his relatives Gurdhayan Singh @ Bau (petitioner) on mobile and asked him to manage meals and stay arrangements and they went to petitioner and had meal and stayed there and next day, they again went in search of Simran @ Simu but petitioner was not accompanying them. Therefore, it has been canvassed that in case petitioner Gurdhyan Singh would have been member of conspirators party then he would join all accused at Banbirpur on 23.5.2021. According to learned counsel for petitioner, petitioner has come in picture by accident being relative of Balbir Singh as he was contacted by Balbir to make arrangements for him and his companions. According to him, petitioner had made arrangements as a relative but not as a conspirator. Therefore, role attributed to petitioner cannot be considered a part of conspiracy.

11 It has been further contended that once planning was made to kill Simran @ Simu at Banbirpur, as claimed in prosecution story, there was no occasion to make plan on same line on subsequent day. As there is nothing on record in evidence to establish that accused persons11had again conspired that too informing and involving petitioner Gurdhayan Singh in and about their plan, it cannot be presumed that for providing meal and stay arrangements, he was part of conspiracy to kill Simran @ Simu. With respect to allegations of recky of Simran @ Simu by Gurdhayan Singh is concerned, it is submitted that according to prosecution story, Gurdhayan Singh came into picture during late night and had he been a member of conspiracy then there would have no need to other co-accused to search Simran @ Simu till late night, rather, they would have reached and stayed at Panjhera in wait for Simran @ Simu and would have moved only after getting signal from Gurdhayan Singh, but it is not the case of prosecution rather, case of prosecution is that as it was late night, therefore Balbir Singh decided to stay and to have meal with help of Gurdhayan Singh and therefore, petitioner is not involved in conspiracy.

12 It has been also contended that stay of accused party at Gurdhayan Singh’s place is an accidental stay and it was not a part of conspiracy and he has not committed any offence by making stay arrangements and providing meals to guests accompanying his relative Balbir Singh and being not a part of conspiracy, petitioner Gurdhyan Singh has not been found involved in any other case either the cases of chain reaction in present case from the intial quarrel between two parties or any other case otherwise and thus, it has been prayed that petitioner should not be treated like other co-accused whose active role has come in evidence, rather, petitioner deserves to be treated differently than all other accused persons and deserves to be enlarged on bail.

13 Learned Additional Advocate General submits that act, conduct and deeds of petitioner are more than sufficient to infer that petitioner Gurdhayan Singh was involved in conspiracy along with main accused Avtar Singh and others and manner in which offence has been committed is not entitled for bail.

14 Without commenting upon the rival contentions of parties and taking into consideration the entire facts and circumstances of the case, and also taking note of the factors and parameters, required to be considered at the time of adjudication of bail application, as propounded in various pronouncements of the Courts, I am of the considered opinion that case of petitioner can be treated differently than other co-accused persons and thus, he may be enlarged on bail at this stage.

15 Accordingly, petitioner is ordered to be enlarged on bail, at this stage, subject to furnishing personal bond in the sum of Rs.1 lac with one local 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 ensuring his presence during trial including the following further conditions:-

(i) That the petitioner shall make himself available during further 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. She 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.

16 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.

17 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.

18 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.

19 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.

The petitioner is 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, passing of order may be verified from the High Court website or otherwise.

Petition stands disposed of.

Dasti copy on usual terms.