Rakesh Kumar vs State Of H.P

Vivek Singh Thakur, J

Petitioner has approached this Court for regular bail, under Section 439 Cr.P.C., in case FIR No. 277 of 2018 dated 12.6.2018, registered in Police

Station Sadar Una, District Una, H.P. under Sections 302, 323, 120-B IPC read with Section 34 IPC.

Status report stands filed wherein it is stated that Aman (complainant), son of Shri Yashpal, had made a statement under Section 154 Cr.P.C.

stating therein that on 7.6.2018 he was coming back home from field after cutting grass and at about 6.30 PM when he reached near brick kiln in

village Malahat, he had found his paternal uncle (Tau) Kushal Kumar (now deceased) consuming liquor along with accused Dharmender, accused

Ravinder and accused Rakesh Kumar (petitioner) and when he asked his uncle to come with him to go home, Dharmender accused had asked the

complainant to leave the place as they had to take more liquor yet. Complainant had further stated that they were living in joint family and after taking

meal, he had gone to bed and on 8th June, 2018 at about 7.40 AM, co-villager Devinder Kumar had informed telephonically complainant’s brother

Vikas that dead body of his uncle was lying in field. It was further disclosed by complainant that a few days ago, accused Dharmender was caught by

his wife red handed, wandering with another lady, and because of which Dharmender was detained in Police Station for one night and Dharmender

was suspecting that complainant’s uncle (now deceased Kushal Kumar) had informed Dharmender’s wife about that and therefore, out of

malice, Dharmender along with his friends Ravinder Kumar and Rakesh Kumar (petitioner) had conspired and murdered his uncle after intoxicating

him.

It is further stated in status report that at about 7 PM on 8.6.2018, accused, named in statement of complainant, were arrested and since then, after

remaining in police custody, they are in judicial custody.

According to status report, after postmortem, the Medical Officer has opined that cause of death in this case, in his opinion, was ‘B/C chest wall

trauma associated with liver injury caused by blunt force impact, likely to cause death in ordinary course.’

During investigation, as per status report, on the basis of call details recorder obtained along with details of tower, location of all three accused has

been found in Malahat, i.e. the spot of incident.

It is also reported in status report that human blood of Group ‘A’ was detected on blood stained piece of brick, blood stained stone, blood

stained soil and clothes of deceased Kushal Kumar and blood traces were also detected on clothes of accused Ravinder Kumar and Dharmender

Singh, whereas blood was not detected on T-shirt and Capri of accused Rakesh Kumar.

It is also stated in status report that as per report received from State FSL with respect to DNA profiling, DNA profile obtained from blood stained

piece of brick, stone and soil matches with DNA profile obtained from blood samples of deceased Kushal Kumar and a mixed DNA profile was

obtained from pyjama of accused Ravinder Kumar from which one component matched with DNA profile obtained from blood sample of deceased

Kushal Kumar and that DNA obtained from T-shirt of accused Dharmender was not found consistent with DNA obtained from blood sample of

deceased Kushal Kumar.

Challan in this case was presented in Court on 4.9.2018 and trial is pending. It is informed by learned Additional Advocate General that next date in

trial is 2.9.2020 fixed for further order and statements of 23 witnesses have been recorded, whereas statements of 17 witnesses, including one

material witness Aman (complainant), who shall depose with respect to involvement of accused in commission of offence, are yet to be recorded.

Learned counsel for petitioner submits that petitioner has been involved on the basis of statement of complainant whereby he had claimed that

accused was lastly seen with petitioner, Dharmender and Ravinder but the said fact has not been proved by material witnesses examined to prove the

same. According to him, last scene theory with respect to petitioner Rakesh Kumar has been demolished in view of statements of PW2 Charan Dass,

PW3 Pawan Kumar, PW22 Ravi Kumar and PW23 Suresh Kumar, who, in their statements, have stated that on 7.6.2018 between 8 PM to 8.30 PM

they had seen accused Dharmender and deceased Kushal together purchasing wine in the liquor shop at Madanpur Basoli, which indicates that it was

not accused Rakesh Kumar, who was last seen together with deceased, but, it was accused Dharmender, as according to him, complainant Aman has

claimed to have seen accused persons together with deceased at 6.30 PM, whereas in statements of PW2 Charan Dass, PW3 Pawan Kumar, PW22

Ravi Kumar and PW23 Suresh Kumar, it has come on record that Dharmender and deceased had purchased liquor from liquor vend between 8 and

8.30 PM.

It is further argued by learned counsel for the petitioner that in view of statement of PW14 Kesari Devi, occurrence of incident, attributed for

enmity between Dharmender and deceased Kushal causing alleged motive to Dharmender for committing the offence, has also become doubtful as

PW14 Kesari Devi, examined to prove the said fact, has not supported the prosecution story.

Learned counsel for petitioner has further submitted that another circumstance to prove the presence of petitioner Rakesh Kumar on spot is

location of his mobile phone indicated in call details report issued by Service Provider Company. He submits that in view of statement of PW20

Devender Verma, a Nodal Officer of Bharati Airtel, wherein he has stated that he could not comment that if a person was present in one village

within a particular tower location, even then his mobile tower location could be traced within the tower location of another village and further that it

was correct to suggest that as per call details Ext.PW20/A and tower location details Ext.PW20/L pertaining to mobile number of Rakesh Kumar, the

said number was not found within tower location of Malahat area on 7.6.2018.

Learned Additional Advocate General has submitted that witnesses i.e. complainant Aman Kumar, who had seen petitioner Rakesh Kumar

together with his deceased uncle is yet to be examined and, therefore, on the basis of statements of PW2 Charan Dass, PW3 Pawan Kumar, PW20

Devender Kumar, PW22 Ravi Kumar and PW23 Suresh Kumar, it cannot be said that there is no evidence on record with respect to the fact that

petitioner Rakesh was not last seen together with deceased Kushal Kumar. He has further submitted that these witnesses have not been examined

with respect to the fact of last seen together on spot, where dead body was found, but they are for corroborating the fact that Dharmender and

Kushal were consuming liquor in the evening/night of 7.6.2018 and it does not falsify the case of prosecution that deceased Kushal Kumar was

consuming liquor in the area of brick kiln along with all three accused persons, rather, it fortifies the prosecution story that liquor was being consumed

by them together at relevant point of time.

According to learned Additional Advocate General, there is no reason or motive on the part of Aman, brought on record, to implicate petitioner

Rakesh Kumar falsely. He further submits that when petitioner was seen by nephew of deceased Kushal Kumar, consuming liquor at brick kiln where

dead body of Kushal Kumar was found, then it is incumbent upon petitioner Rakesh Kumar to explain his conduct and absence from the spot prior to

occurrence/incident causing the death of deceased or to explain how and in what manner deceased had received injuries resulting his death, who was

found consuming liquor in the company of petitioner and his companions.

Petitioner is facing charge under Section 302 IPC, which is a heinous crime punishable with death or imprisonment for life and fine. At this stage,

on the basis of material on record, it cannot be said that ex-facie no case is made out against him. The main witness, in whose statement involvement

of petitioner in commission of offence has been alleged, is yet to be examined.

In aforesaid facts and circumstances, placed before me, without commenting upon merits of the evidence recorded by trial Court and submissions

made by learned counsel for petitioner with respect to evidence already recorded, I do not find it a fit case to enlarge the petitioner on bail at this

stage.

Accordingly, petition is dismissed with direction to parties to ensure their effective representation before trial Court on 2nd September, 2020 the

date already fixed and the dates subsequent thereto to be fixed by the trial Court, enabling the trial Court to record the evidence and in view of

notification dated 7.8.2020 issued by the High Court, the trial Court is also directed, by taking all safety measures, to fix a date for recording evidence

and to complete the evidence in trial as early as possible so as to conclude the trial expeditiously. Parties are also directed to avoid unnecessary

adjournments, but to cooperate and assist the Court to record the evidence and conclude the trial.

Any fact recorded herein-above and observations made by this Court are limited to the purpose of deciding the present petition and the same, in

any eventuality, shall not be construed to have been made/observed on merits and thus, shall not have any effect on merits of case, which is to be

decided by trial Court on its own merits on the basis of material before it.

Petition is dismissed in aforesaid terms. Registry to transmit a copy of this order to the trial Court through e-mail.