Uttarakhand High Court
Nitant Bawa vs State Of Uttarakhand on 26 February, 2024
Author: Pankaj Purohit
Bench: Manoj Kumar Tiwari, Pankaj Purohit
Order reserved on: 19.02.2024
Order delivered on: 26.02.2024
HIGH COURT OF UTTARAKHAND AT NAINITAL
Bail Application (IA No.1/2023)
In
Criminal Appeal No.211 of 2023
Nitant Bawa ........Appellant
Versus
State of Uttarakhand ........Respondent
Present:-
Mr. U.K. Uniyal, learned Senior Advocate (appeared through
V.C.) assisted by Mr. Harshit Sanwal, learned counsel for the
appellant.
Mr. J.S. Virk, learned Deputy Advocate General along with
Mr. Rakesh Joshi, learned Brief Holder for the State.
Mr. M.K. Ray, learned counsel for the informant.
ORDER
Coram: Hon'ble Manoj Kumar Tiwari, J.
Hon'ble Pankaj Purohit, J.
Per: Hon'ble Pankaj Purohit, J.
This is an appeal under Section 374(2) of
Cr.P.C. against the judgment and order dated
27.02.2023 passed by learned 2nd Additional Sessions
Judge, Rudrapur, U.S. Nagar in Sessions Trial No.92 of
2017, whereby appellant has been convicted and
sentenced as under:-
S. Conviction Sentence Fine Sentence in-lieu of fine
No.
1. 302 IPC Life Rs.5,000/- Six months' additional
r/w 34 IPC Imprisonment imprisonment
2. 25 Arms 02 years' R.I. Rs.1,000/- One month
Act additional
imprisonment
Both the sentences were directed to run concurrently.
2. Heard learned counsel for the parties on bail
application.
3. It is submitted by learned Senior Advocate for
the appellant that the case of the prosecution is not
proved beyond reasonable doubt and appellant has been
implicated in the instant case due to enmity with
Baljeet Singh, S/o Tejinder Singh. He further submits
that not a single witness, who is named in the first
information report has seen the incident and presence of
the witnesses named in the FIR is highly doubtful,
inasmuch as, the statement of the alleged eye-witnesses
i.e. PW2 Nirmal Singh and PW3 Kamaljeet Singh were
recorded by the Investigating Officer on 26.03.2017 after
about three months of the incident and this fact alone
makes the entire case of prosecution highly doubtful.
4. Learned Senior Advocate for the appellant
strenuously argued if PW2 and PW3 were eye-witnesses,
they would have been examined by the prosecution
promptly and not after three months. He also pointed out
the contradictions in the evidence of alleged eye
witnesses as one of the witness stated that the deceased
was shot when he was inside the vehicle while the other
witness stated that he was shot by the appellant-
applicant along with other co-accused persons, when he
was out of the vehicle.
5. In order to buttress his argument, learned
Senior Advocate relied upon the judgment rendered by
Hon'ble Apex Court in the case of Harbeer Singh &
others vs. Sheeshpal & others; reported in
MANU/SC/1348/2016, wherein the accused were given
benefit of doubt only for the reason that eye-witnesses
were examined by the Police 15-16 days after the
incident.
6. Per contra, learned Deputy Advocate General
submits that the deceased was assaulted with fire arms
by the appellant along with his accomplices i.e. Yogesh
Chandra @ Bunty and Manpreet Randhawa @ Lucky. He
further submits that the case of prosecution is supported
by two eye-witnesses i.e PW2 & PW3, who have been
named in the first information report. He also submits
that as per the report/instructions, appellant-applicant
has long criminal history and five cases have been
registered against him. Details of those cases are as
under:-
S. District Police Case Section Name, address of
N Station Crime accused
o Number
1. U.S. Rudrapur 02/17 302/324/506 Nitant Bawa, S/o
Nagar IPC Surendrapal Bawa,
R/o Nainital Bank
2. Kichha 62/22 504/506/427
Wali Gali, Kichha
IPC
Hall, Pahadganj,
3. Kichha 257/22 147/323/336 P.S. Rudrapur,
/427 IPC District U.S. Nagar
4. Kichha 289/22 323/325/504
/506 IPC
5. Pulbhatta 102/19 307/452/504
/506 IPC
7. Hon'ble Supreme Court in the case of V.K.
Mishra & another vs. State of Uttarakhand & another,
(2015) 9 SCC 588 has held in para 26 that it is not a rule
of universal application that testimony of a witness
becomes unreliable merely because there is delay in
examination of a particular witness and further the delay
by itself cannot amount to any infirmity in the case of the
prosecution.
8. Mr. M.K. Ray, learned counsel appearing for
the informant submits that the appellant-applicant is a
dangerous person of a criminal antecedents, who on
being released on bail during trial of this case, had
assaulted one Amritpal Singh, S/o Jasvinder Singh along
with other co-accused persons and a Criminal Case
No.6631 of 2019 under Sections 307, 452, 504 & 506
IPC was registered against the accused persons in which
charge-sheet was submitted and there are various other
cases registered such as First Information Report No.289
of 2022, under Sections 323, 325, 504 & 506 IPC, P.S.
Kichha against the appellant-applicant along with other
co-accused.
9. Learned Senior Advocate for the appellant
admitted that criminal cases against the appellant were
registered, but he pointed out that in both the cases, the
proceedings have been quashed on account of
compromise between the parties and the order passed by
this Court in Criminal Misc. Application No.1485 of
2021, Prabhjot Singh @ Prabhjot Randhawa & others vs.
State of Uttarakhand & another dated 27.10.2021 and
judgment and order dated 05.10.2023, passed by learned
Judicial Magistrate, Kichha, District U.S. Nagar in
Criminal Case No.738 of 2023, State of Uttarakhand vs.
Vipin Singh & others were produced in support of his
contention.
10. Having heard learned counsel for the parties
and having perused the trial court record, we are not
inclined to release the appellant-applicant on bail mainly
for the reason that the appellant-applicant committed
offence punishable under Section 307 IPC, while on bail
during trial of the present case, in which he was
convicted and also due to his long criminal history.
11. So far as the argument of learned Senior
Advocate for the appellant that there is a delay of three
months in recording the statement of the alleged eye-
witnesses named in the FIR is concerned, it is not that in
every case where there is delay, the entire trial will be
vitiated. This Court cannot be a maid in the hands of
investigating agency who sometimes in league with the
accused persons, may leave such lacuna in the
investigation in order to benefit the accused persons.
12. In this view of the matter, we are not inclined
to grant bail to the appellant-Nitant Bawa and
accordingly, the bail application is rejected.
13. It is made clear that the observations made
hereinabove are only for the purpose of deciding the
present bail application and will not affect the final
merits of the case.
(Pankaj Purohit, J.) (Manoj Kumar Tiwari,J.)
26.02.2024
AK
