Himachal Pradesh High Court

Gurmukh Singh @ Golu vs State Of Himachal Pradesh on 4 October, 2021

Bench: Vivek Singh Thakur

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

ON THE 04th DAY OF OCTOBER, 2021

BEFORE HON'BLE MR. JUSTICE VIVEK SINGH THAKUR

CRIMINAL MISC. PETITION (MAIN) NO.1874 OF 2021

Between:-

GURMUKH SINGH @ GOLU, S/O SHRI KEHAR SINGH, R/O VILLAGE AND P.O. KHILLIYAA, TEHSIL NALAGARH, DISTT.SOLAN H.P. AGED 24 YEARS .....PETITIONER

(BY SH.N.S. CHANDEL, SENIOR

ADVOCATE, ALONGWITH SH.VINOD GUPTA, ADVOCATE)

AND

STATE OF HIMACHAL PRADESH ...RESPONDENT (BY SH.ANIL JASWAL,

ADDITIONAL ADVOCATE GENERAL)

CRIMINAL MISC. PETITION (MAIN) NO.1875 OF 2021 Between:-

RAJAN THAKUR, S/O SHRI BASANT RAM, R/O VILL. MEHRIWALA, P.O. LODI MAJRA, TEH. BADDI, DISTRICT SOLAN H.P. AGED 21 YEARS.

    (BY SH.N.S. CHANDEL, SENIOR                        .....PETITIONER
    ADVOCATE,         ALONGWITH
    SH.VINOD GUPTA, ADVOCATE)

    AND









    STATE OF HIMACHAL PRADESH
                                                      ...RESPONDENT
    (BY     SH.ANIL      JASWAL,
    ADDITIONAL ADVOCATE GENERAL




                                                       .

CRIMINAL MISC. PETITION (MAIN) NO.1901 OF 2021 Between:-





    SANTOSH KUMAR @ SONU,
    S/O SHRI HARI SINGH, RESIDENT
    OF VILLAGE MHAISI PLASI, P.O. &
    TEHSIL   NALAGARH,     DISTRICT
    SOLAN HP AGED 26YEARS





    (BY SH.AMRINDER SINGH RANA,                       .....PETITIONER
    ADVOCATE)

    AND

    STATE OF HIMACHAL PRADESH

                                                      ...RESPONDENT
    (BY      SH.ANIL     JASWAL,
    ADDITIONAL ADVOCATE GENERAL
    GENERAL)

CRIMINAL MISC. PETITION (MAIN) NO.1902 OF 2021 Between:-




    RAKESH KUMAR @ KAICHI,
    SON OF SH. BHAG RESIDENT OF





    VILLAGE DODUWAL, P.O. LODI
    MAJRA    AND   TEH.     BADDI,
    DISTRICT SOLAN H.P. AGED 22





    YEARS
                                                      .....PETITIONER
    (BY SH.AMRINDER SINGH RANA,
    ADVOCATE)

    AND

    STATE OF HIMACHAL PRADESH
                                                      ...RESPONDENT
    (BY     SH.ANIL      JASWAL,
    ADDITIONAL ADVOCATE GENERAL







    GENERAL)

CRIMINAL MISC. PETITION (MAIN) NO.1907 OF 2021 Between:-

BALJEET SINGH @ BABLOO, SON

OF SH. RAM LOK RESIDENT OF

VILLAGE DHELA, P.O. AND TEHSIL BADDI, DISTRICT SOLAN HP AGED 24 YEARS.

(BY SH. AMRINDER SINGH RANA, .....PETITIONER ADVOCATE)

AND

STATE OF HIMACHAL PRADESH ...RESPONDENT (BY SH.ANIL JASWAL, ADDITIONAL ADVOCATE GENERAL GENERAL)

(SI BBU RAM P.S. NALAGARH IS PRESENT IN PERSON)

Whether approved for reporting?

These petitions coming on for orders this day, the Court passed the following:

JUDGMEMT

In these petitions, Petitioners have approached

this Court seeking bail under Section 439 Code of Criminal

Procedure (in short 'Cr.P.C.'), in case FIR No.161 of 2021, dated

15.06.2021, registered in Police Station Nalagarh, Police

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

149 of the Indian Penal Code (in short 'IPC') 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 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.

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. 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.

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-15E-1717 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 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 information 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

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

8. 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 HP12L-1019. 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

though petitioners have joined investigation, but they are not

disclosing anything about pistol of deceased Simran alias

Simmu and either accused Iqbal alias Pala, Rammi and Nazim

alias Raja 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 petitioners 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 rshould 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 petitioners 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 petitioners should not be curtailed.

12. It has been submitted that petitioners, in case

they are enlarged on bail, are ready and willing to abide by

any condition imposed upon them and also ready to furnish

surety(ies) to the satisfaction of the Court. Further that now

challan has also been presented in the Court of learned

Additional Chief Judicial Magistrate, Nalagarh on 29.09.2021.It

is also contended that presence of petitioners is also negated

by fact that none of them has received any injury because

they were not present at the spot at all.

13 Lastly, it has been submitted that co-accused

Iqbal Mohd. and Akbar Hussain have also been enlarged on

bail vide order dated 14th September, 2021 passed in Cr.MP(M)

Nos. 1553 and 1566 of 2021.

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 petitioners have been found

involved in commission of a serious offence under Section 307

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

therefore, they are not entitled for bail and, therefore, prayer

for rejection of these petitions 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 petitioners as well as learned

Additional Advocate General, I find that at this stage,

petitioners are entitled for bail.

16. Accordingly, present petitions are allowed and

petitioners are directed to be enlarged on bail and interim bail

granted on 09.08.2021 is confirmed, subject to furnishing

personal bonds in the sum of Rs. 30,000/- each with one

surety each 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 petitioners/accused at the time of trial

and also subject to following conditions:-

(i) That the petitioners shall make themselves available to the police or any other Investigating

Agency or Court in the present case as and when

required;

(ii) that the petitioners 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. They shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;

(iii) that the petitioners shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioners shall not commit the offence similar to the offence to which they are accused or

.

suspected;

(v) that the petitioners shall not misuse their liberty in any manner;

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

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

prosecution;

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

(ix) that the petitioners shall inform the Police/Court

their contact numbers and shall keep on informing about change in addresses and contact numbers, 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 petitioners 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 petitioners as it may

deem necessary in the interest of justice.

18 In case the petitioners violate any condition

imposed upon them, their 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 Trial Court is directed to comply with the directions