Uttarakhand High Court

Harish Chandra Brijwasi vs State Of Uttarakhand on 8 May, 2024

Author: Rakesh Thapliyal

Bench: Rakesh Thapliyal

                                                                                 Judgment Reserved

 IN THE HIGH COURT OF UTTARAKHAND
             AT NAINITAL
                      1st Bail Application No. 2469 of 2022

Harish Chandra Brijwasi.                                              ................Applicant
                                              Versus
State of Uttarakhand.                                                    .........Respondent.
Present:
Mr. D.K. Sharma, learned Sr. Advocate with Mr. Abhishek Joshi, learned counsel for the applicant.
Mr. V.K. Gemini, learned Deputy Advocate General for the State.


                                               With
                      1st Bail Application No. 2019 of 2022

Lalit Mohan Negi.                                                     ................Applicant
                                              Versus
State of Uttarakhand.                                                    .........Respondent.
Present:
Mr. Lalit Sharma, Mr. R.S. Sammal, Ms. Sarita Bisht, learned counsel for the applicant.
Mr. V.K. Gemini, learned Deputy Advocate General for the State.



                                       And
                      1st Bail Application No. 2166 of 2022

Manish Saini.                                                        ................Applicant
                                              Versus
State of Uttarakhand.                                                    .........Respondent.
Present:
Mr. Anurag Bisaria, learned counsel for the applicant.
Mr. V.K. Gemini, learned Deputy Advocate General for the State.



Hon'ble Mr. Rakesh Thapliyal, J.

1. By the instant bail applications, all the applicants are seeking regular bail in relation to Case Crime No. 354 of 2022 wherein they are facing the trial for the offences punishable under Section 147, 148, 302, 504, 120-B IPC registered at Police Station - Haldwani, District - Nainital.

2. As per the prosecution story, a first information report was lodged by one Govind Gaira at Police Station - Haldwani, on 07.07.2022 alleging therein that on 06.07.2022, his brother Neeraj Gaira, one Kartik Verma and he himself (informant) were taken by Harish

Brijwasi on a trip to Kathgodam in his Car. After returning from there, they all gathered in an open plot at Mandi, Haldwani for taking drinks and the complainant was asked to take some edible items and thereafter, some 8-10 persons gathered there, who were sitting nearby Harish Brijwasi and they started talking with them and thereafter, they abuses and assaulted his brother Neeraj Gaira and Harish Brijwasi was exhorting them to kill Neeraj Gaira by saying "Kill him, as his family has registered a case against him and are not ready for compromise". In this incident, his brother sustained grievous injuries, consequently, an FIR was registered on the next day i.e. on 07.07.2022, at 07.30 p.m. (19.30 hours) with Police Station - Haldwani, District - Nainital.

3. After the incident, injured was brought by one Kuldeep Kuliyal, resident of CMT Colony to Neelkanth Hospital, Haldwani, who was medically treated by Dr. Deepak Singh Panwar but since the condition of the injured was very serious, he was referred to Dr. Susheela Tiwari Hospital on 08.07.2022 where he was treated by Dr. Abhishek Raj, Neuro Surgeon, but due to head injury, the injured died on 11.07.2022 at 08.40 a.m., thereafter, on the same date i.e. on 11.07.2022, postmortem was conducted on the body of the deceased by Dr. Sahil Khurana and Dr. D.P. Singh and as per, post-mortem examination report "cause of death is complications following head injury" and all injuries on the body of the deceased are ante mortem in nature. Since, the injured subsequently, died, therefore, Section 302 IPC was added and after investigation, charge-sheet was filed for the offence punishable under Section 147, 148, 504, 302 and 120B IPC on 02.10.2022. In the charge-sheet five persons were charge-sheeted namely Harish Brijwasi, Manish Saini, Lalit Mohan Negi @ Titu Negi, Neeraj Sammal and one juvenile - Gunjan Gangwar. As per the charge- sheet, there are in total 20 witnesses. The charge-sheet indicates that accused Harish Brijwasi was also implicated in another FIR bearing FIR No. 183 of 2022 for the offences punishable under Section 323, 504, 506 IPC read with Section 3 (1) (x) of the SC & ST Act wherein charge- sheet was filed on 18.10.2022 and the matter is under consideration.

4. Mr. D.K. Sharma, learned Sr. Advocate with Mr. Abhishek Joshi, Mr. Lalit Sharma, Mr. R.S. Sammal, Mr. Gaurav Singh, Mr. Anurag Bisaria, learned counsel appearing for the applicants submit that all the applicants are innocent and they have been falsely implicated. It is submitted by learned Senior Counsel that the alleged incident had taken place on 06.07.2022 in an open plot near Haldwani Mandi, which is situated at a distance of 3 km. from Police Station - Haldwani, however, the FIR was registered at a belated stage i.e. after 22 hours of the incident on 07.07.2022 at 07.30 p.m. but no satisfactory explanation has been given by the informant for lodging the delayed FIR. It is also submitted that as per the FIR, there was an old enmity between Harish Brijwasi and deceased Neeraj Gaira but as contended by Mr. D.K. Sharma, learned Sr. Advocate, who is appearing for accused Harish Brijwasi, there was no such dispute either civil or criminal between the deceased or their family member with Harish Brijwasi which itself reveals from the affidavit of the prosecution since there is no reference of any case in order to establish enmity except one case the reference of which has been given in the charge-sheet, which have no nexus with the deceased family.

5. It is also contended by Mr. D.K. Sharma, learned Sr. Advocate for the applicant that injured (deceased) Neeraj Gaira was brought by one Pooran Palaria to Dr. Susheela Tiwari Hospital, as is evident from the entry made in the Accident Register cum Wound Certificate dated 06.07.2022 maintained by Dr. Susheela Tiwari Hospital but this person was neither examined nor made as a witness, who is in fact, as per this certificate, is most material witness.

6. Learned Sr. Advocate further gives reference of the statement of Dr. Deepak Singh Panwar, Neuro Surgeon, Neelakanth Hospital, Haldwani, who in his statement stated that injured was brought by one Kuldeep Kuliyal, on 06.07.2022, at 10.00 p.m. in the hospital but again this person was also neither examined nor made as witness, who as per statement of Dr. Deepak Singh Panwar, is also a very material witness.

7. Learned Sr. Advocate further submits that as per prosecution story, there are two eye witnesses one PW1 -Govind Gaira, brother of the deceased and another one PW3 - Kartik Verma, who is an independent eye witness. He further submits that there is a great contradiction in the statements of both the eye witnesses PW1 Govind Gaira and PW3 Kartik Verma. He further submits that whether PW1 Govind Gaira is an eye witness or not is itself doubtful, as from perusal of the Accident Register cum wound certificate issued by doctor of Dr. Susheela Tiwari Hospital which itself shows that injured was brought by another person namely Pooran Palaria, who was neither examined nor made as a witness in the charge-sheet.

8. Another argument, which has been advanced by learned counsel for the applicants, is that during cross examination PW1 Govind Gaira, informant and brother of the deceased and who was, as per prosecution was an eye witness, stated that he does not know to Harish Brijwasi, one of the accused, though his brother was known to him but since when he was not aware.

9. Mr. Lalit Sharma, learned counsel for the applicant - Lalit Mohan Negi @ Titu, submits that during cross examination of PW 1 Govind Singh Gaira was called to police station on 07.07.2022 for identification of the accused persons and the identification was done before lodging of the FIR, which establishes that applicants have been implicated in a preplanned manner. He further submits that neither there is any intention nor motive to kill the deceased and applicant is in jail since 07.07.2022. It is also informed that another co-accused Gunjan Gangwar (juvenile) has already been enlarged on bail. It is also contended by the learned counsel for the applicant that accused Lalit Mohan Negi and Manish Saini have no criminal history, however, the accused applicant Harish Brijwasi has criminal history of only one case, in which trial is going on, which is evident from the charge-sheet, which is filed in respect of the FIR No. 183 of 2022 for the offence punishable under Section 323, 504, 506 IPC read with Section 3 (1) (x) of the SC & ST Act.

10. Mr. R. S. Sammal, Mr. Lalit Sharma and Mr. Anurag Bisaria, further submits that as per statement of eye witness PW3 Kartik Verma, accused Lalit Mohan Negi @ Titu Negi was not present at the place of incident and the recovery on the pointing out Lalit Mohan Negi and Neeraj Sammal is planted.

11. Mr. V.K. Gemini, learned Deputy Advocate for the State, submits that there are two eye witnesses of the incident and after thorough investigation and after collecting credible evidence, charge- sheet was filed and Kuldeep Kuliyal, in his statement recorded under Section 161 Cr.P.C. has stated that Neeraj Gaira (deceased) was brought by his brother Govind Gaira to the Hospital, who informed that he was beaten by some persons and though names of those persons, who had beaten Neeraj Gaira (deceased) were disclosed by Govind Gaira but he is not remembering the names of the accused persons and thereafter, Neeraj Gaira (deceased) was brought to Neel Kanth Hospital and he himself admitted him to the hospital. Mr. V.K. Gemini, learned Deputy Advocate General, gives reference to the statement of PW 1 Govind Gaira, brother of the deceased, particularly to question nos. 4 and 9, which establishes the enmity of accused applicant Harish Brijwasi with the deceased.

12. Apart from this, Mr. V.K. Gemini, learned Deputy Advocate General, further gives reference to the statement of PW 4 Anand Singh Gaira, father of the deceased, who stated that when he visited to see Neeraj Gaira (deceased) in the Hospital he was not in a condition to speak but every time he was referring the name of accused Lalit Mohan Negi @ Titu.

13. No doubt after investigation, charge-sheet was filed and charges were framed and trial is going on and whatever be the evidences has been collected, during investigation by the Investigating Officer, while submitting the charge-sheet, all these aspects are subject matter of the trial.

14. It is also informed to this Court by the learned Deputy Advocate General that there are total in total 20 witnesses and uptil date, only 9 witnesses have been examined, which itself shows that there is no possibility that trial will be concluded within a short span of period, as still there are 11 witnesses, who are required to be examined and now, since the trial is going on therefore, this Court should refrain from making any observation about merit of the case, since the same will affect the trial. Therefore, taking into consideration that applicants are in jail since July, 2022 viz. Manish Saini since 08.07.2022, Harish Brijwasi since 09.07.2022 and Lalit Mohan Negi since 07.07.2022.

15. After taking into consideration all the arguments advanced by learned counsel for the applicants and arguments advanced by learned Deputy Advocate General for the State and further taking into consideration that applicants are languishing in jail since July, 2022 (viz. Manish Saini since 08.07.2022, Harish Brijwasi since 09.07.2022 and Lalit Mohan Negi since 07.07.2022) and all the applicants except Harish Brijwasi have no criminal history, who is facing trial in respect of another case i.e. FIR No. 183 of 2022 for the offence punishable under Section 323, 504, 506 IPC read with Section 3 (1) (x) of the SC & ST Act and further taking into consideration that out of 20 witnesses uptil date only 9 witnesses have been examined, therefore, there is no possibility that trial will be concluded within a short span of period, this Court is of the view that all the applicants deserve for bail.

16. Accordingly, without expressing any opinion on the merit of the case, all the bail applications are allowed.

17. Let all the applicants namely Lalit Mohan Negi @ Titu, Manish Saini and Harish Chandra Brijwasi be released on bail on furnishing their personal bond and two sureties, by each of them, to the satisfaction of the court concerned subject to the following condition:

a. That all the applicants shall deposit their passports, if they have, in the trial court.

b. That all the applicants, after being released on bail, will not make any attempt to influence any of the witnesses, in any manner and will cooperate with the trial.