Sahil Khan vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner is an accused in case FIR No.10 of 2017, dated 14.11.2017, registered in Police Station Majra, District Sirmaur, H.P., under Sections 364,

120B and 302 read with Section 34 of the Indian Penal Code (in short ‘IPC’). He has been arrested on 28.11.2017 and since then, he, after

remaining in police custody, is in judicial custody. Petitioner has approached this Court second time seeking regular bail under Section 439 Code of

Criminal Procedure (in short ‘Cr.P.C.’). Earlier bail applications filed by him before learned Additional Sessions Judge, Sirmaur District at

Nahan, H.P. as well as this Court were dismissed vide respective orders dated 13.08.2018 and 30.11.2018. Rejection of bail by this Court was

assailed by the petitioner in the Supreme Court. Special Leave Petition (Criminal) filed by the petitioner was dismissed on 01.07.2019.

Status report stands filed.

I have heard learned counsel for the petitioner as well as learned Deputy Advocate General for respondent-State and have also gone through the

status report filed on behalf of the respondent-State.

Prosecution case, emerging from material on record, is that on 13.11.2017 father of deceased Mumtaz has lodged report in Police Station that his 20

years old daughter Mumtaz was missing since 11.11.2017 after leaving house at 10.00 a.m., to visit college for collecting her marks sheet.

Investigating Agency finding a clue that deceased was last seen together with one Sharik Rehman on 11.11.2017 at Paonta Sahib, Sharik Rehman

was interrogated, who had disclosed that Mumtaz had called him to Paonta Sahib by making a call on his mobile phone through an unknown number

and, therefore, he had went to Paonta Sahib to meet her, but, at that time, Mumtaz had expressed her anger and asked him to follow his own path and

had ended relations with him. Later on, on 15.11.2017, when police visited his house, Sharik Rehman had inflicted an injury in his stomach with a sharp

edged weapon to avoid police interrogation and this incident had led to registration of FIR No.11 of 2017 against him under Section 342, 186, 506 and

309 IPC. Location of Sharik Rehman, on the basis of call details and tower location, on 11.11.2017, was found at Puruwala, Moginand, Badripur and

Gondpur in the morning time and at Badwas, Baldwa (Kamrau) during day time and after 1.30 p.m., again at Badripur and Puruwala area. Thereafter,

search for deceased Mumtaz was started in these areas and on 25.11.2017 after sensing foul smell, police party was able to discover a red coloured

lady plastic shoe at a curve between Sataun and Hevna Temple at a distance of 20 feet below the road and on further search found a putrificated

dead body of a woman. The said dead body, on the basis of wearing and shoe, was identified by her relatives, as of Mumtaz.

On further interrogation, Investigating Agency had found material to infer that on 11.11.2017, Sharik Rehman had used the vehicle of one Abdul

Rehman to take Mumtaz alongwith him and to throw her from the cliff with an intention to kill. It was further found on the basis of CCTV footage of

the cameras installed in the area that vehicle used by Sharik Rehman had gone towards Sataun at 10.24 a.m. and at Batapul it was found coming

towards Puruwala at 2.03 p.m. The call details of Sharik Rehman and petitioner-Sahil Khan disclosed their inter se talks and their presence in one and

the same area on 11.11.2017 and during interrogation petitioner-Sahil Khan has admitted that he had visited towards Kamrau in the said car alongwith

Sharik Rehman and Mumtaz and, during return from Kamrau, Sharik Rehman had stopped car near the curve and asked petitioner-Sahil Khan to

leave the vehicle enabling Sharik Rehman to have personal talks with Mumtaz and, therefore, petitioner-Sahil Khan had come out of the vehicle and

gone towards backside of it and had started talking with his girlfriend on mobile and when he came back he saw Sharik Rehman was dragging

Mumtaz outside the car and throwing her from the cliff. Thereafter petitioner-Sahil Khan was arrested on 28.11.2017 after adding Section 302 read

with Section 34 IPC in the case. On 01.12.2017, on the basis of statement of petitioner -Sahil Khan, recorded under Section 27 of the Indian Evidence

Act, 1872, he had identified the spot where Mumtaz was killed and thrown from the cliff by Sharik Rehman. Thereafter, Sharik Rehman was also

arrested on 04.12.2017.

As per status report, challan has been presented in the Court and trial is pending adjudication in the Court of learned Additional Sessions Judge,

Sirmaur District at Nahan, and is at the stage of recording evidence. It is stated in the status report that during interrogation, it has been admitted by

Sharik Rehman that on 11.11.2017 he had murdered Mumtaz by throttling her and had thrown her from the cliff.

It is submitted by learned counsel for the petitioner that earlier petitioner-Sahil Khan had approached this Court seeking bail, on the ground of parity

with another accused Abdul Rehman and, on the basis of material on record, this Court had concluded that there is no parity in the role of present

petitioner- Sahil Khan and Abdul Rehman. He has further submitted that present petition has been filed on the ground that even if prosecution case is

admitted to be true then also, petitioner cannot be said to have knowledge about intention of Sharik Rehman to commit murder of Mumtaz. According

to learned counsel for the petitioner, Sharik Rehman was well acquainted with Mumtaz, and petitioner-Sahil Khan had left the vehicle on the request

of Sharik Rehman, enabling him to have personal talks with Mumtaz and at that time, petitioner-Sahil Khan was not having any knowledge about the

intention of Sharik Rehman to kill Mumtaz and petitioner-Sahil Khan was not aware that what had happened in the vehicle leading to murder of

Mumtaz. He has submitted that as per prosecution case also, petitioner-Sahil Khan had seen Sharik Rehman throwing body of Mumtaz from the cliff

and the only lapse on the part of petitioner-Sahil Khan is that he did not disclose commission of offence to anybody, including the police.

It is further submitted by learned counsel for the petitioner that petitioner-Sahil Khan at that time was 19 years of age and was not having prudence

like grown-up person to report the commission of offence by Sharik Rehman instead of concealing it. However, he has further submitted that

petitioner-Sahil Khan, on interrogation by the police, had disclosed entire story and had also identified the spot wherefrom dead body was thrown and,

therefore, at the most petitioner-Sahil Khan can be said to have committed an offence of concealing the commission of offence by Sharik Rehman, but

definitely cannot be punished for committing murder of Mumtaz.

Learned counsel for the petitioner has submitted that otherwise also, petitioner-Sahil Khan is behind the bars since 2017 and in the status report

also, no other role on his part except accompanying the main accused Sharik Rehman and deceased Mumtaz in the vehicle and witnessing Sharik

Rehman throwing body of Mumtaz from the cliff, has been stated or alleged. He has further submitted that dismissal of earlier petitions of petitioner-

Sahil Khan as well as SLP preferred on behalf of petitioner in the year 2019 cannot be taken into consideration for rejection of present petition

because those applications/petitions were preferred seeking bail on the ground of parity with Abdul Rehman.

Learned counsel for the petitioner has further submitted that where there is no parity in the role of petitioner and Abdul Rehman, there is also no

parity in the role of present petitioner and main accused Sharik Rehman as according to prosecution case itself, he has not participated in killing

Mumtaz and throwing her body from the cliff, but only witnessed the same, but his fault is that he remained silent till he was approached by Police. He

has further submitted that, however, immediately on approaching by the police, he had disclosed each and everything to the police including the place

of occurrence. It is further submitted that at the time of incident petitioner was only 19 years of age and was not having sight to visualize the

repercussion of not disclosing the commission of offence committed by Sharik Rehman and, therefore, his conduct in this regard was but natural and,

therefore, despite the fact that petitioner was accompanying main accused and deceased at the time of incident, he cannot be considered to have

participated in commission of offence under Section 302 IPC. According to him, petitioner was not having any knowledge about intention of main

accused Sharik Rehman to kill deceased Mumtaz and thus petitioner had left both of them in car, on request of main accused to give chance and

space to the main accused and Mumtaz to have personal talks to resolve their differences and/or clarify their respective versions to each other with

respect to their relationship. Therefore, petitioner’s presence on the spot cannot be stretched to implicate him as an accused or accomplice of the

main accused having intention to commit murder. Presence of the petitioner on the spot is by chance being friend of both i.e. main accused as well as

victim and for that petitioner has suffered more than sufficient detention and, thus, he has advocated enlarging the petitioner on bail.

Learned Deputy Advocate General submits that it is not a case where offence has been committed, on account of sudden provocation, rather it is

a coldblooded murder committed in a planned way and after noticing it petitioner-Sahil Khan remained silent till he was pinpointed by the police on the

basis of evidence collected against him establishing his presence on the spot of commission of crime. He has further submitted that after taking into

consideration entire facts and circumstances, present petition deserves to be dismissed.

Earlier application, filed by the petitioner, was dismissed by this Court on 30.11.2018 keeping in view nature and gravity of the offence and

balancing personal and societal interest more particularly at that stage. Petitioner is behind the bars since November 2017 i.e. about three and a half

years. Considering nature of role attributed to the petitioner, by prosecution, period of detention and other submissions made by learned counsel for the

petitioner, I am of the opinion that at this stage, petitioner can be treated differently than the main accused Sharik Rehman and also considering

balance of societal interest at this stage vis-a-vis personal interest of the petitioner with respect to his personal liberty, I am of the opinion that at this

stage, petitioner may be enlarged on bail.

Accordingly, present petition is allowed and petitioner is ordered to be released on bail in case FIR No.10 of 2017, dated 14.11.2017, registered in

Police Station Majra, District Sirmaur, H.P., on his furnishing personal bond in the sum of Rs.50,000/- with one surety in the like amount, to the

satisfaction of the trial Court, within two weeks from today, upon such further conditions as may be deemed fit and proper by the trial Court, including

the conditions enumerated hereinafter, so as to ensure the presence of petitioner/accused at the time of trial and also subject to following conditions:-

(i) That the petitioner shall make himself available to the police or any other Investigating Agency or Court in the present case 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 from disclosing such facts to Court or to any police officer or tamper with the evidence. He 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/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which he is accused or suspected;

(v) that the petitioner shall not misuse his liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, his bail shall be liable to be cancelled on taking appropriate steps by

prosecution; and

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court his contact number and shall keep on informing about change in address and contact number, if

any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary in the interest of justice.

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.

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 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of

the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this judgment, downloaded from the web-page of the High Court of Himachal Pradesh, before the

authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High

Court.