Sukhbir Kaur vs Hazoor Singh

S.S. Sudhalkar, J.

The private respondents are released on bail by the learned Additional Sessions Judge, Karnal vide his order dated 22.1.1997. This order was passed after the challan was produced. Earlier the private respondents were refused bail by the said Additional Sessions Judge on 20.9.1996. The Criminal Misc. 3378M of 1997 is filed by the complainant while Criminal Misc. 4056M of 1997 is filed by the State for cancellation of bail.

I have heard both these petitions together and they are being disposed of by this common judgment.

On 11.8.1996, on the statement of one Rajbir Singh a case for the offence under Section 304A of the Indian Penal Code was registered by the police. In the statement the complainant has stated that he had seen a young man lying dead on the left side of KarnalKaithal road and a scooter lying parked near a kikar tree in the area of Sirsi. On the next day, post mortem examination on the dead body was got performed from a board of three Medical Officers and it was found that the cause of death was asphyxia due to throttling and all the injuries on the dead body were ante mortem in nature. The dead body was identified to be of one Rana Ranbir Singh resident of Karnal. Thereafter offence under section 302 of the Indian Penal Code was also added in the FIR. Statement of Sukhbir Kaur was recorded. The police also recorded other statements and the private respondents are booked as accused. The learned Additional Sessions Judge had considered that second application for bail was maintainable. He considered the fact that the names of Amar Singh and Dalbir Singh do not find mention in the remand papers though according to the prosecution story these two persons had seen the accused causing death of Rana Ranbir Singh at 3 p.m. on 11.8.1996. He has also considered that the wife of the deceased Smt. Sukhbir Kaur in her statement under section 161 Cr.P.C., recorded on 12.8.1996, mentioned that on the morning of that day Amar Singh and Dalbir Singh had told her at her house that the private respondents had committed the murder of her husband but she did not immediately go to the police station to disclose the real story and she did not even take Amar Singh and Dalbir Singh to police station to make statements; and that she got suspicious about death of her husband only at 11 a.m. when she saw dead body of her husband in General Hospital, Karnal.

Regarding the maintainability of the second bail application it has been held by the Supreme Court in the case of Babu Singh and others v. The State of Uttar Pradesh, AIR 1978 SC 527 that order refusing bail does not bar fresh application on later occasion giving more details, further developments and different considerations.

The first order of bail in case is at annexure P/2 qua private respondents except Surjit Singh. It is a short order and after hearing, the finding of the learned Additional Sessions Judge is at paras 3 and 4 of the order. According to the said finding, the Public Prosecutor had opposed the bail application on the ground that the accused Hazoor Singh was already an accused in case FIR No. 315 dated 3.11.1995 along with Joga Singh and Mukhtiar Singh for attempting to commit the murder of Rajbir Singh who is son of Rana Ranbir Singh (deceased in this case) and out of the remaining two accused, Devinder Singh is real brother of Hazoor Singh and Sahib Singh is closely related to them. It is also mentioned that in case these persons are granted bail, certainly they can commit some more serious crime. These observations made in para 3 of the order are merely reproduction of the arguments of learned Public Prosecutor. In para 4 of the said order, the following finding is made :

"Keeping in view all the circumstances of the case, I do not find it a fit case to grant bail. As such the bail application is rejected." It can be seen that no specific reasons were given for rejecting the bail and there was no discussion of the argument advanced by the petitioner''s side.

In the bail order dated 22.1.1997 (subsequent order) in para 4 the learned Additional Sessions Judge observed that photo copy of the earlier order dated 20.9.1996 was produced and that there was argument from the counsel for the accused before him that there was completely a changed situation after presentation of challan in the court because by then statements of witnesses who have made an attempt to rope in the applicants as accused in that case have been recorded by the police and there were a number of circumstances which go to show that the two witnesses who are in fact chance witnesses could not be believed at all. Statements of Sukhbir Kaur wife of the deceased and Amar Singh son of Haria and Dalbir Singh son of Sukha Singh were recorded on 12.8.1996 out of whom Amar Singh and Dalbir Singh claimed to have seen the accused actually causing death of Rana Ranbir Singh at 3 p.m. on 11.8.1996. The learned Additional Sessions Judge had also considered the fact that remand papers dated 14.8.1996 and 18.8.1996 did not disclose as to who made statements implicating the private respondents in that case for causing murder of Ranbir Singh. The statement of Sukhbir Kaur is produced at annexure P/3 in Crl. Misc. 3378M of 1997. It is dated 11.8.1996. She has stated in her statement that their land is at Gonder and there is an adjoining patch 61/4 acres which they have been cultivating for a long time. When the original owner of the land died, Surjit Singh got a "registry done" from his heirs at a low rate. The money for the "registry" was given by Surjit Singh and thereafter Surjit Singh started making efforts to forcibly occupy the land, she further stated that she did not let him take possession of the land. It is further stated that on 3.11.1995, a number of Surjit Singh''s men came to take possession of the land, at that time his son Rajbir Singh was sowing wheat in the land. When Surjit Singh''s men attacked with their weapons, his son Rajbir Singh fired from his .22 bore rifle in selfdefence and a case was registered in this connection against Joga Singh and others at Police Station Nissing and "this is being prosecuted in Court." The wheat crop that came up was also forcibly harvested at night by Surjit Singh and others and a case has been registered in this connection against Surjit Singh etc. She has further stated that her husband went to Dera Gonder from Karnal in the forenoon for some of his work on his scooter and that he did not come back at night. She was very upset and spent the night praying to God. In the morning she received intimation that her husband has met with an accident near Sirsi Canal Bridge Nissing and his dead body was in General Hospital, Karnal. On receiving the information, she along with her relatives reached the hospital and as soon as she saw her husband''s dead body, she was sure that her husband''s death was caused by Surjit Singh son of Sucha Singh and that he and his men had conspired to murder her husband, because even earlier her husband used to tell her that Surjit Singh, Joga Singh and others threatened to kill him whenever he was going anywhere. She has further stated that in the morning, Dalbir Singh and Amar Singh informed her when they came to her house that when they were going on a scooter from Karnal towards Gonder, at around 3.30 p.m., after they crossed Sirsi Bridge, they saw one Trax (Jeep) hit Rana Ranbir Singh due to which he fell from his scooter and within their sight Hazoor Singh, Sahib Singh and Surjit Singh hit Rana Ranbir Singh with ...... Davinder Singh who was driving the Trax fled away from the spot. They (Amar and Dalbir) also informed her that Surjit Singh, Sahib Singh and Hazoor Singh on seeing them said that Rana Ranbir Singh''s son had killed our man and they have taken revenge by murdering him (Rana Ranbir Singh).

A copy of the special report is produced at annexure P/4 in Crl. Misc. 3378M of 1997. Of course it is regarding the offence under section 304A of the Indian Penal Code and also mentions the development on 12.8.1996 after the postmortem was conducted. It is mentioned that after opinion of the doctor, in the postmortem report, section 302 of the Indian Penal Code has been added.

Learned counsel for the petitioner has cited the case of Sunita v. State of Punjab, 1996(1) RCR 116 in which it has been held that when the bail was granted by the learned Additional Sessions Judge he discussed the factual aspects to minutest details and then entered into arena of surmises and conjectures as if he was recording a judgment at final stage of trial. In that case the bail was cancelled, and it was observed that the deceased was last seen with accused who had motive to do away with the deceased and that there was prima facie involvement of accused made out and that the Additional Sessions Judge exercised his judicial discretion in an arbitrary and whimsical manner.

In the case of Harminder Singh v. Sarvjit Singh and others, 1991 PLR 76 it has been held that the High Court was competent to cancel the bail if erroneously granted by the Court of Session. It is apparent in the second bail application that the learned Additional Sessions Judge considered more facts and in the earlier bail order there was virtually no discussion for coming to the conclusion for rejecting the bail. It is not in dispute that the second bail application has been filed after the challan was produced in the Court. Therefore, the principle in the case of Babu Singh and others v. The State of Uttar Pradesh (supra) will certainly apply to the facts of this case. It is not disputed that the courts should not go to discuss the prima facie evidence considering minutest details as if it is discussing the evidence at the trial, however, to some extent, the Court has to consider the prima facie evidence for coming to the conclusion regarding grant of bail or not. If of course the court discusses the whole evidence it can be said that the said act of the court is not proper. In the case of Sunita v. State of Punjab (supra) the High Court also considered the evidence of last seen together and motive and came to the conclusion that the bail should have been cancelled. So the bail was not cancelled in that case only on the ground that when the bail was granted the Additional Sessions Judge discussed the factual aspects to minutest details.

From the statement of Sukhbir Kaur annexure P/3, it is clear that when she saw the dead body of her husband in the hospital, she was convinced that her husband''s death was caused by Surjit Singh and she narrates that Dalbir and Amar Singh had told her about the incident. The translated version of the statements of Dalbir and Amar Singh are produced in Crl. Misc. 3378M of 1997 at annexure P/12 and P/11 respectively. These statements are dated 12.8.1996. Amar Singh has stated in his statement regarding the incident that on that day when he was standing on railway crossing Kaithal Road for waiting the bus to go to village Gonder, Dalbir Singh came there on the scooter and he asked him to stop and Dalbir Singh stopped the scooter. He has further stated that he sat on the scooter to go to village Gonder and both of them started for going to Gonder. It is also mentioned that when they reached one kilometer ahead of Sirsi Bridge towards Nissing, they saw person coming on a scooter from the side of Nissing and one Trax (jeep) was following it and within their sight Trax hit the scooter from its site and scooter rider fell on the ground and Trax stopped a bit ahead of it. It is also stated that Surjit Singh, Hazoor Singh and Sahib Singh came out of Trax. Hazoor Singh and Sahib Singh were having handles of spade in their hand and within their sight Sahib Singh gave a danda blow on the head of the person lying on the ground and Hazoor Singh also gave danda blow to the person lying on the ground. Surjit Singh took handle of the spade from the hand of Hazoor Singh and pressed it after putting it on the neck of the person who was lying on the ground. Hazoor Singh and Sahib Singh cought hold of both the arms of the said person and Devinder Singh who was driving the Trax ran away along with it towards Karnal. It is also stated that when they reached near them, they found that the person who was lying on the road was Ranbir Singh Rana who was living in Ashoka Colony. It is also mentioned that there was bleeding from his head and scooter was lying by the side of the road in between the Kikar trees. It is also stated that Sahib Singh, Surjit Singh and Hazoor Singh, on seeing them said that son of Ranbir Singh Rana murdered their man and now they have taken the revenge by murdering Ranbir Singh. It is also stated that they were also threatened by the said persons that if they would disclose this to anyone then they would also teach them a lesson and also threatened them by giving ''life threat''. It is also mentioned that they came to Dera from the place of occurrence and they told about the occurrence on the Dera. It is also stated that they thought that when they have seen the murder of Ranbir Singh why should they not tell about the same to his family members and that they will face the consequences and on the next day in the morning, they came to Karnal from Dera and disclosed everything to Smt. Sukhbir Kaur wife of Ranbir Singh Rana.

In view of the above facts, giving the information of incident late by the eyewitnesses has to be considered. This part of circumstances can be vital and, however, it can also be explained at the trial where the witnesses are subjected to crossexamination. Therefore, though this delay is vital, the effect of the delay has to be considered in an individual case from its own evidence. However, while considering the release on bail, this delay becomes material. The position now is it would have been the same position if without going into the minutest details, the learned Additional Sessions Judge had considered the delay mentioned above. Only because the Judge might have committed mistake (if at all it is) of going in details regarding the evidence, it shall not mean that the finding should be reversed on that ground alone.

Moreover the Supreme Court has laid down in the case of Aslam Babalal Desai v. State of Maharashtra, 1993(1) RCR 600 various grounds on which bail once granted can be cancelled. They are as under :

(i) the accused misuses his liberty by indulging in similar criminal activity;

(ii) interferes with the course of investigation;

(iii) attempts to tamper with evidence of witnesses;

(iv) threatens witnesses or indulges in similar activities which would hamper smooth investigation;

(v) there is likelihood of his fleeing to another country;

(vi) attempts to make himself scarce by going underground or becoming unavailable to the investigation agency.

(vii) attempts to place himself beyond the reach of his surety;

Of course it is held that these grounds are illustrative and not exhaustive.

Learned counsel for the petitioner and learned Deputy Advocate General have argued that getting a false case registered under Section 304A of the Indian Penal Code itself is an act of tampering with the evidence. It will be difficult to accept this version at this stage because it cannot be presumed that they were the petitions which get the case under Section 304A of the Indian Penal Code registered and this can only be considered at the trial in detail.

Because of the above reasons, I do not find it proper to cancel the bail granted to the private respondents. Both these petitions are, therefore, dismissed.

Petitions dismissed.