Fateh Singh vs Unknown
2021 Latest Caselaw 5807 HP

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
                 ON THE 18th DAY OF DECEMBER, 2021

                                 BEFORE




                                                              .

             HON'BLE MR. JUSTICE VIVEK SINGH THAKUR

           CRIMINAL MISC. PETITION (MAIN) No. 2257 OF 2021





BETWEEN:-

     RAJIDNER SINGH ALIAS JINDU S/O SHRI





     FATEH SINGH, REIENT OF VILLAGE
     FLAHI, POST OFFICE LODI BARUNA,
     TEHSIL NALAGARH, DISTRICT SOLAN,
     H.P.             r                                         ...PETITIONER

     (BY SH. VINOD GUPTA, ADVOCATE.)

     AND

     STATE OF HIMACHAL PRADESH.                             ...RESPONDENT



     (BY SH. HEMANT VAID, ADDITONAL
     ADVOCATE GENERAL. )




     Whether approved for reporting?





               This petition coming on for orders this day, the Court





delivered the following:
                            JUDGMENT

In this petition, petitioner has approached this Court,

invoking provisions of Section 439 of Cr.P.C., seeking bail in case FIR

No. 161 of 2021, dated 15.6.2021, registered in Police Station Nalagarh,

Police District Baddi, H.P., under Sections 336, 307, 147, 148 and 149

of the Indian Penal Code and Section 25 of the Arms Act, 1959.

2. Status report stands filed and records also made available.

3. Records of cross FIR No.147 of 2021 dated 24.05.2021

registered in Police Station Nalagarh, Police District Baddi, H.P., was

also made available.

4. It transpired from the record that on 24.05.2021, FIR No.147

of 2021 was registered on the basis of statement made by 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.HP12M-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.HP12M-

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.

5. It was also stated in the aforesaid statement by the

complainant that earlier also, on 22.05.2021 at about 9.00 p.m. 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 petitioner, 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.

6. On the basis of aforesaid complaint of Rajinder Singh, after

registration of FIR, accused persons in that FIR 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 in FIR No.147 of 2021 during inspection of

vehicles, one bullet of 8MM was recovered from Scorpio bearing

registration No. HP-15E1717 which was used by accused persons in the

said FIR (FIR No. 147/2021). The accused persons in FIR No.147 of

2021 are in judicial custody.

7. With respect to the same incident FIR No.161 of 2021 has

been registered on 15.6.2021, on the basis of joint complaint submitted

by some villagers of accused in FIR No. 147/2021 against Balwant

Singh and others to Sub Divisional Police Officer Nalagarh, which was

sent to Police Station for further action and was received in the Police

Station on 15.06.2021. It was stated in the said complaint that death of

Simran alias Simmu in the incident of 24.05.2021 was unfortunate

accident however it had been heard that deceased was involved in the

business of Chitta, drugs etc. and children of complainant in FIR No.

.

161/2021 were opposing his activities by saying that deceased was

spoiling lives of children and their children had made a complaint against

deceased on No.1100 and they had been also uploading posts on social

media in this regard and, therefore, deceased was having enmity with

them and used to threat to kill them and deceased had been following

and chasing their children and had made their life hell and all these

informations were being given by the local boys namely Pradeep,

Gurpal, Rakesh, Jolly, Bablu, Rajan etc. It was further stated that on

23/24.05.2021 there was a marriage in the village and the accused

persons (in FIR No. 161/2021) were having knowledge that children of

complainant side had been attending the marriage and on 23rd and 24th

May large number of vehicles had come to their village. It is further

stated that it is heard that on the day of incident, half an hour prior to the

incident, some vehicles had come to their village. It was further stated

that on 24.5.2021 boys of complainant side were coming from Nalagarh

to their home and deceased Simran alias Simmu alongwith others was

going towards Nalagarh in search of boys of complainant side and they

met them at Khera. As per complaint, deceased Simran alias Simmu

was going alongwith his companions in five vehicles bearing registration

Nos.HP-12N-7845, HP-12M-7845, HP-12L-1019, HP-93-4095 and HP-

12K2462 and it was deceased who had hit the car of the boys of

complainant side by going wrong side and had opened indiscriminate

firing upon the boys of complainant side after hitting their vehicle. It was

further stated that assailants were 25-30 boys in number having pistol

and sharp weapons in their hands, and Simran alias Simmu, Rajan and

Jindu were having pistol in their hands and other boys Shammi,

.

Mandeep, Jhakhiyan, Nupi Fauji, Krishan, Makha, Raja Pahalwan, Pala,

Santosh alias Sonu Massih Plassi, Rammi, Harsh Bagwaniyan

(Kasambowal), Pradeep alias Pappu, Johny, Iqbal, Akbar alias Akku,

Jolly, Gurpal, Rakesh, Bablu, Vicky, Iqbal were having sharp weapon in

their hands. Lastly, it was stated that FIR be lodged from the side of the

8. to boys of the complainant (accused in FIR No. 142/2021).

On the basis of aforesaid complaint, FIR in present case,

has been registered and police has arrested ten accused persons, who

are in judicial custody in Kanda Jail, Sub-Jail Kaithu and Sub-Jail Solan.

Balbir Singh alias Ballu, accused in FIR No.147 of 2021, has been cited

as a spot witness and as per prosecution story in present case, on

24.05.2021 deceased Sirmanjeet Singh alias Simmu, Akbar alias Akku,

Rajan, Nazim Raja, Rajinder alias Jindu, Iqbal alias Pala, Rammi, Iqbal

petitioner and Baljeet and Bablu were coming towards Nalagarh in

vehicles bearing registration Nos. HP-12M-7845, HP12N-7845 and

HP12L1019. It was further claimed that from vehicle No.HP-12M-7845

two live cartridges of 8MM were recovered from the spot and Simran

alias Simmu as per CCTV footage had been seen firing from his pistol

which is yet to be recovered. Whereas, Simranjeet alias Simmu has

expired. It has also been stated in the status report that petitioner did not

disclose anything about pistol used by him and Simran alias Simmu and

some other accused are yet to be arrested, who have gone

underground.

9. Learned counsel for the petitioner has submitted that FIR

No.161 of 2021 has been registered about 20 days after the incident that

.

too on a complaint which is based upon hearsay information. Whereas,

accused in FIR No.147 of 2021 were arrested on 24.05.2021 and the

facts mentioned in the complaint dated 15.06.2021, if really true, were

very much in the knowledge of the accused persons and their family

members, but for 20 days they remained silent which reflects that it is an

afterthought on the part of the accused in FIR No.147 of 2021,

concocted to save those accused by implicating the petitioner and

others in a false case who in fact are victims. It has further been stated

that FIR in present case was not lodged by the spot witnesses, but by

the strangers who were not at all present on the spot. It has further been

stated that in the status report filed in present case, it has been alleged

that two empty cartridges were recovered from the vehicle of deceased

Simran alias Simmu, whereas, no such recovery was shown or recorded

during the investigation of FIR No.147 of 2021, despite the fact that at

that time, all the vehicles were inspected and searched by the

Investigating Officer as well as team of RFSL and during that, no such

recovery of cartridges from the vehicle of Simran alias Simmu was ever

claimed or brought on record.

10. Referred call details of Iqbal, it has been further stated that

he being complainant in Rapat No.36 dated 22.05.2021, was in contact

with ASI Harjeet Singh through his Mobile No.9418463221 and the said

ASI was calling him (Iqbal) and others to the Police Station with

reference to Rapat No.36 and for that purpose, on 24.05.2021, Iqbal had

talks with the said ASI at 12:40, 12:58, 13:20 and 13:05 and in pursuant

to these calls Iqbal and others were coming to Police Station Nalagarh,

but on the way vehicle of deceased Simran alias Simmu was hit by the

.

accused in FIR No.147 of 2021 and indiscriminate firing and blow of

sharp and blunt weapons were made by them upon Simran and his

companions leading to death of Simran alias Simmu, causing gunshot

injuries to Avtar @ Akku and Nazim and blunt injuries to Iqbal alias Pala

and Rajinder Singh. Whereas, none of the assailants were accused in

FIR No.147 of 2021 had received any injury. It has been submitted that

had there been attack and assault from the side of deceased Simran

alias Simmu and his companions as claimed in present FIR, then, boys

of complainant side in present case, would have or anyone of them

would also have received injuries, but absence of injury clearly indicates

that a false story was concocted to save the assailants, who had killed

Simran alias Simmu and injured his companions. It has been further

stated that it being a cross FIR in present case, investigation should

have been done by the same Investigating Officer, but this principle has

not been followed by the prosecution as the prosecution was knowing

that in such eventuality investigation in present case would lead to

cancellation of FIR lodged against the petitioner and others.

11. It has been further submitted that prosecution case in FIR

No.147 of 2021 runs counter to the case in present FIR No.161 of 2021

and stance of the prosecution in both cases is irreconcilable and,

therefore, it has been claimed that on the basis of unbelievable and

improbable hearsay story, concocted by the accused in FIR No.147 of

2021, personal liberty of the petitioner should not be curtailed.

12. It has been submitted by learned counsel for the petitioner

that co-accused in present case have already been enlarged on bail vide

.

order dated 14.9.2021, passed in Cr.MP (M) No. 1453 of 2021, titled

Iqbal Mohd. Vs. State of Himachal Pradesh, Cr.MP (M) No. 1566 of

2021, titled Akbar Hussain Vs. State of Himachal Pradesh, and vide

order dated 4.10.2021, passed in Cr.MP (M) Nos. 1874 of 2021, titled

Gurmukh Singh Vs. State of Himachal Pradesh, 1875 of 2021, titled

Rajan Thakur Vs. State of Himachal Pradesh, 1901 of 2021, titled

Santosh Kumar Vs. State of Himachal Pradesh, 1902 of 2021, titled

Rakesh Kumar Vs. State of Himachal Pradesh and 1907 of 2021, titled

Baljeet Singh Vs. State of Himachal Pradesh, in identical facts and

circumstances.

13. Lastly, it has been submitted that petitioner, in case he is

enlarged on bail, is ready and willing to abide by any condition imposed

upon him and also ready to furnish surety to the satisfaction of the

Court.

14. Learned Additional Advocate General referring contents of

the status report including the complaint dated 15.06.2021 has

submitted that it is evident from the status report as well as record that

petitioner has been found involved in commission of a serious offence

under Section 307 of IPC in the broad daylight on a public highway and,

therefore, he is not entitled for bail and, therefore, prayer for rejection of

this petition has been made.

15. Considering entire material on record but without assessing

it on merit and also considering principles and factors relevant to be

considered at the time of deciding bail applications with reference to

aforesaid facts and circumstances placed before me, and submissions

made by learned counsel for the petitioner as well as learned Additional

.

Advocate General, I find that at this stage, petitioner is entitled for bail.

16. Accordingly, present petition is allowed and petitioner is

directed to be enlarged on bail, subject to furnishing personal bond in

the sum of `30,000/- with one surety in the like amount, to the

satisfaction of the trial Court, within three 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 them 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 their liberty in any manner;

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

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

(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.

.

17. 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.

18. In case the petitioner violates any conditions imposed upon

him, his interim 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.

19. 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 18.03.2013.

20. Observations made in this petition hereinbefore shall not

affect merits of the case in any manner and are strictly confined for the

disposal of the bail application.

21. 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, it may verify the order from the High

Court website or otherwise.

The petition stands disposed of in the aforesaid terms.

Dasti copy on usual terms.

                                                  (Vivek Singh Thakur),
    th
18 December, 2021                                        Judge.
         (Keshav)