Rampal @ Ramphal vs State Of H.P
2023 Latest Caselaw 13881 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
                                                           Cr.M.P. (M) No. 1494 of 2023

                                                            Date of decision: 16.9.2023




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    Rampal @ Ramphal                                                                    ...Petitioner.
                                                  Versus





    State of H.P.                                                                       ...Respondent.

    Coram
    The Hon'ble Mr. Justice Vivek Singh Thakur, Judge.
    Whether approved for reporting?1
    For the Petitioner.

    For the Respondent:
                                 r                  to
                                             Mr.Anirudh Sharma, Advocate.

                                             Mr.Manoj
                                             General.
                                                                Chauhan,           Additional        Advocate

                        Vivek Singh Thakur, Judge (Oral)

Petitioner has approached this Court, seeking bail under

Section 439 of Criminal Procedure Code (in short 'Cr.P.C.'), in FIR No. 10 of

2019, dated 9.1.2019, registered in Police Station Parwanoo, District Solan,

H.P., under Sections 302, 341, 323 read with Section 34 of the Indian Penal

Code (in short 'IPC').

2. Status report stands filed and record was also made available.

3. As per status report, the FIR was registered on 09.01.2019

in Police Station Parwanoo, on the basis of statement of complainant-Rahul,

recorded under Section 154 Cr.P.C., stating therein that Sudhir Kumar

(deceased), Pawan Kumar (co-accused) and Ram Pal @ Ram Phal

(petitioner) were his brothers-in-law (Jija), living near gate of Eicher

Company in Jhugis, and on 8.1.2019 at 9:30 P.M. he saw three persons

quarreling on the road and that on going closer to them,

he identified them and found that Pawan Kumar and Ram Pal @ Ram

Phal were beating Sudhir with sticks and Sudhir was lying on the road

and complainant tried to save him, but Pawan Kumar and Ram Pal @

Whether the reporters of the local papers may be allowed to see the Judgment? Yes

Ram Phal threatened to beat him also and thereafter Mukesh, Vikas

Raj and Pankaj, present on the spot, rescued Sudhir and 2-3 stick

blows were also received by Mukesh. Further that, the moment Sudhir

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attempted to flee, Pawan and Ram Pal @ Ram Phal restrained him and

again beat him and thereafter Pawan Kumar and Ram Pal @ Ram Phal

went to their place of residence and Sudhir revealed to him that Ram

Pal @ Ram Phal had borrowed 11,000/ at the time of marriage of

his sister and when he asked for repayment he was beaten by Pawan

Kumar and Ram Pal @ Ram Phal.

4. As per status report, aforesaid statement was recorded by

Head Constable when he visited the spot to verify the contents of

complaint, regarding the quarrel taken place on 08.01.2019. During

investigation, it was found that Sudhir was taken to ESI Hospital,

Parwanoo, wherefrom on the same day, i.e. 09.01.2019, he was

referred to PGI, Chandigarh for further treatment and during treatment

he expired on 11.01.2019, whereupon section 304 IPC was added in

the case and lateron on the basis of evidence collected, case was

converted into 302 IPC, as it has come in the statements of witnesses that

on 08.01.2019 when Sudhir (deceased) asked Ram Pal @ Ram

Phal to return his money, Ram Pal @ Ram Phal picked up a danda

from the spot and with intention to kill Sudhir gave a forceful blow on

his head, which caused death of Sudhir during his treatment.

5. Challan in the present case was presented in the Court on

12.04.2019 and, as on date, out of total twenty two witnesses, seven

witnesses have been examined and three have been given up and next

date for recording the evidence has been fixed on 3rd and 4th May, 2023.

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

that in statement recorded under Section 154 Cr.P.C., Rahul had alleged

that petitioner Ram Phal and co-accused Pawan Kumar were beating Sudhir

with sticks and they had also given 2-3 blows of stick to Mukesh, who

alongwith Vikas Raj and Pankaj to save Sudhir. Whereas, to the contrary to

allegations only one injury with blow of danda was found on the body of

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deceased in post mortem.

7. It has been further stated that alleged quarrel took place on

8.1.2019 at about 9:30 P.M., whereas matter was reported to the Police by

one Sangita on 9.1.2019 by filing an application, but FIR was not lodged on

the basis of said application and only Daily Diary Report No. 35 dated

9.1.2019 was recorded, wherein there is no allegation of intention to kill

Sudhir Kumar, as it has been stated in the application that quarrel took place

between Sudhir who is son of her maternal aunt (Masi) and Ram Phal and

Pawan Kumar are sons of her maternal uncle and in this quarrel Sudhir

received deep head injury and request was made for medical examination of

Sudhir and action against Ram Phal and Pawan. After recording Daily Diary

Report, it was recorded that injured Sudhir was sent for medical examination

to ESI Hospital, Parwanoo.

8. It has been further stated that as per prosecution story, Rahul

met Head Constable, who went to the spot regarding inquiry with respect to

complaint received and he made a statement which was recorded under

Section 154 Cr.P.C. On the basis of his statement, FIR was recorded under

Sections 341, 323 read with Section 34 IPC.

9. Injured was referred to Government Medical College and

Hospital, Chandigarh, from ESI Hospital, Parwanoo, wherefrom he was

taken to PGI, Chandigarh on the same day, i.e. 9.1.2019, but he died during

treatment on 11.1.2019, whereupon Police, on the basis of material

available, added Section 304 IPC.

10. Referring aforesaid circumstances, stated in the status report,

learned counsel for the petitioner has submitted that present case is not a

case of planned or unplanned murder, but was a simple quarrel in which

unfortunately injured had expired and taking into consideration entire

evidence available, initial opinion of Investigating Agency was that at the

most it is a case of commission of offence under Section 304 IPC, but not

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under Section 302 IPC.

11. It has been further contended that lateron case was converted

into an offence under Section 302 IPC and, as per status report, it was after

recording statement of Dharam Pal brother of deceased on 26.3.2019,

wherein he had stated that Ram Phal did not repay the loan taken from

Sudhir and when Sudhir went to his Jhugi, Ram Phal picked a danda from

the spot and with intention to kill him gave a forced blow on his head,

leading to death of Sudhir during treatment. Learned counsel for the

petitioner submits that Dharam Pal was not present on the spot and the

witness present on the spot and first complainant Sangita Devi had never

alleged intention of the petitioner or co-accused to kill deceased Sudhir and,

therefore, considering all these facts, it is evident that it is not a case of

murder, but of accidental death, which was never intended by the petitioner.

12. Learned counsel for the petitioner has referred statements of

witnesses recorded during trial to substantiate his plea that petitioner has

not committed offence under Section 302 IPC.

13. Learned counsel for the petitioner submits that now it has

been come on record in prosecution story that Ram Phal gave one danda

blow to Sudhir. It has been contended that a person intending to kill another

person would not give only one danda blow, but he would give continuous

beatings or number of danda blows to body of a person intended to be killed

and, therefore, it is wrong to allege that petitioner was having intention to kill

deceased Sudhir Paswan.

14. It has been further contended that petitioner is behind the bars

since January, 2019, i.e. since last about 4 years 9 months. It has been

contended that, including supplementary challan, there are 28 prosecution

witnesses proposed to be examined by the prosecution. Out of them, only

12 witnesses have been examined as on date. Previously matter was listed

for recording evidence of 3 witnesses on 31.7.2023, but for want of service,

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none of them could be examined and now case has been listed on

26.9.2023 for recording 3 witnesses and 30.9.2023 for recording 3 more

witnesses. It has been submitted that leaving apart the merit of the case,

petitioner is also entitled for bail on account of delay in completion of trial,

as, according to him, even by end of September, 2023, if all summoned

witnesses are examined, there will be only 18 PWs examined on behalf of

prosecution and 10 witnesses would still remain to be examined and,

therefore, it has been contended that after detention of 4 years 9 months for

non completion of trial with no possibility of completion of trial in future,

petitioner is entitled for bail.

15. Learned Additional Advocate General has submitted that

petitioner is an accused for commission of offence under Section 302

IPC for which he can be sentenced for life imprisonment or capital

punishment and, therefore, period of detention in present case is no

ground for enlarging him on bail.

16. Learned Additional Advocate General has further submitted

that evaluation and assessment of evidentiary value of the evidence on

record is to be determined by the Trial Court, after conclusion of trial

and in bail application merits of the case are not required to be

adjudicated.

17. It has also been contended on behalf of respondent-State that

petitioner is permanent resident of another State and there is every

possibility of his jumping over the bail by him.

18. Learned counsel for the petitioner has submitted that

petitioner is ready and undertakes to abide by any condition imposed

upon him at the time of enlarging him on bail and also to furnish a

local surety and surety of relative, in order to assure his presence

during the trial.

19. Learned counsel for the petitioner to substantiate plea to

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enlarge the petitioner on bail has also referred orders dated 23.11.2022 and

14.7.2023, passed by co-ordinate Bench in Cr.M.P. (M) No. 2406 of 2022,

titled as Sarabjit Vs. State of H.P. and Cr.M.P.(M) No. 1207 of 2023, titled as

Sansar Chand Vs. State of H.P., wherein petitioners were accused for

commission of offence under Section 302 IPC.

20. Without commenting upon merits of the case, taking into

consideration material placed before me and taking note of factors and

parameters required to be considered at the time of adjudication of bail

application, as propounded by Courts, including the Hon'ble Supreme

Court, I am of the considered opinion that at this stage petitioner may

be enlarged on bail in the present case.

16. Accordingly, present petition is allowed and petitioner is

ordered to be enlarged on bail, subject to his furnishing person bond in

the sum of 1,00,000/ with two sureties, one of which shall be local

surety and another shall be relative of the petitioner, as undertaken by

him, of the like amount to the satisfaction of the trial Court, upon such

further conditions as may be deemed fit and proper by the trial Court,

including the conditions enumerated hereafter, so as to assure

presence of petitioner/accused at the time of trial:-

(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 in accordance with law;

(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

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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;

(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, 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 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.

19. Trial Court is directed to comply with the directions issued

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

disposal of the bail application.

21. Petition is disposed of in aforesaid terms.

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22. Copy dasti.

23. Parties are permitted to produce copy of this order,

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, passing of order can be verified

from the High Court website or otherwise.

                            r                          (Vivek Singh Thakur),
      th
    16 September, 2023                                        Judge.

           (Keshav)