Uttarakhand High Court

Harpal Singh ...... Applicant / vs State Of Uttarakhand on 2 August, 2025

   IN THE HIGH COURT OF UTTARAKHAND
                AT NAINITAL

            HON'BLE THE CHIEF JUSTICE SRI G. NARENDAR
                            AND
             HON'BLE SRI JUSTICE SUBHASH UPADHYAY


                Second Bail Application No. 8989 of 2023

                                       In

                 CRIMINAL APPEAL NO. 232 OF 2019

                          02ND AUGUST, 2025


Harpal Singh                            ......      Applicant / Appellant

Versus

State of Uttarakhand                    ......             Respondent

                               WITH

               CRIMINAL APPEAL NO. 243 OF 2019
               CRIMINAL APPEAL NO. 245 OF 2019
               CRIMINAL APPEAL NO. 273 OF 2019
               CRIMINAL APPEAL NO. 274 OF 2019

Counsel for the applicant /
Appellant                      :       Mr. Aditya Pratap Singh, learned
                                       counsel

Counsel for the respondents    :       Mr. J.S. Virk, learned Deputy
                                       Advocate General assisted by Mr.
                                       Rakesh Kumar Joshi, learned Brief
                                       Holder for the State

                               : Ms. Pushpa Joshi, learned Senior
                                 Counsel assisted by Mr. B.S.
                                 Adhikari, learned counsel for the
                                 complainant

The Court made the following:

ORDER:

(per Hon'ble The Chief Justice Shri G. Narendar)

Heard the learned counsel for the applicant /

appellant, the learned Deputy Advocate General for the

State of Uttarakhand, and the learned Senior Counsel

appearing for the complainant.

2. The prosecution came to be initiated with a

complaint being lodged by P.W.1, the father of the

deceased. P.W.2, P.W.3 and P.W. 4 are the witnesses

who claim to have witnessed the incident. The case of the

prosecution, in a nutshell, is that on the night of

31.10.2016, at about 10:30 P.M., when the deceased and

the P.W.2, P.W.3 & P.W.4 were standing in the Nanak

Matta area and eating eggs, the accused Paramjeet Singh

@ Dimple and Harpreet Singh Bajwa @ Happy came in the

car bearing No. UK06 AC 6983, and on seeing the

deceased, the accused Paramjeet Singh @ Dimple and

Harpreet Singh Bajwa @ Happy got down from the car

and Paramjeet Singh @ Dimple pulled out his country-

made pistol and Harpreet Singh Bajwa @ Happy pulled out

his licensed revolver, and immediately after getting down

from the car started firing bullets at Sonu @ Satnam

Singh and the deceased is said to have collapsed on

suffering the bullet injuries. That the accused arrived in a

white Swift Desire car. That the car had dark tinted

windows and the instant applicant / appellant Harpal

Singh was sitting in the back seat of the car. That the

instant accused shouted out that Sonu should not survive

today. This is the uniform allegation by all the alleged

eyewitnesses namely, P.W. 2, P.W.3 and P.W.4, i.e., in

short, this appellant is accused of exhortation and no

overt act is attributed against this accused, and on the

basis of allegations of exhortation has been convicted for

the offences punishable under Section 302 read with

Section 34 IPC and Section 307 read with Section 34 IPC

in view of the fact that P.W.2, one of the alleged

eyewitnesses is said to have suffered a bullet injury on his

right thigh when he attempted to save the deceased

Sonu.

3. In the cross-examination, it is stated by P.W.2

that the time was around 11:00 P.M., and at that time,

the deceased Sonu received a call on his mobile and he

moved few steps away from the group and was talking on

the mobile, at which time the accused are said to have

arrived. In the cross-examination witness P.W.2 has

stated that as the accused Paramjeet Singh @ Dimple and

Harpreet Singh Bajwa @ Happy got down from the car.

This accused is said to have got down from the car and

ran away from the car in different direction altogether.

The evidence on the part of the other eyewitnesses is also

on the same light. The fact that the time of incident is

about 11:00 P.M., or in the night, is not in dispute. The

fact admitted in the cross-examination is that the car had

dark tinted glasses. The deposition of the eyewitness is

that only the accused Harpreet Singh Bajwa @ Happy and

Paramjeet Singh @ Dimple got down from the car. The

motive is said to have been a dispute relating to trade

union elections. There is nothing on record to

demonstrate that the instant accused / appellant was

involved in the trade union activities, or he was a

supporter or follower of the accused Paramjeet Singh @

Dimple, who is alleged to have successfully contested in

the trade union elections against the deceased.

4. That apart, one other pertinent factor that calls

for attention is the fact that none of the witnesses have

stated as to how they identified the accused when,

admittedly, it was 11:00 P.M. in the night. There is no

reference to the presence of any light, or street light, or

lights of any shop, which enabled the eyewitnesses to

identify this appellant. The fact remains that the accused

Paramjeet Singh @ Dimple and Harpreet Singh Bajwa @

Happy were arrested along with the weapons and

weapons were recovered from the said two accused, and

it is also an admitted fact that this accused was not in the

company of the other two accused, who apparently are

alleged to have committed the overt act of using the

firearms to kill the deceased. The fact remains that this

applicant / appellant was arrested separately after three

days and at a different place. In the background of these

fact and the allegation being one of exhortation and in the

absence of material to demonstrate common intention or

prior concert, and in the absence of evidence to

demonstrate prior concert, the conviction of the applicant

/ appellant by roping him in the provisions of Section 34

IPC, prima facie, appears to be foundationally weak.

5. With regard to the evidence of exhortation, the

Hon'ble Apex Court in the case of Jainul Haque Vs State

of Bihar, reported in (1974) 3 SCC 543, in paragraph 09

has observed as under :

"It would appear from the above that there is a clear discrepancy between the evidence of the witnesses given at the trial and the version given in the first information report regarding the part played by the appellant. The part attributed to the appellant according to the first information report is that he had exhorted the other accused to assault Leyaquat, while according to the evidence adduced at the trial the appellant actually joined in the assault on Leyaquat. The High Court did not accept the prosecution evidence on the point that the appellant had joined in the assault on Leyaquat. All the same, the High Court convicted the appellant because it was of the view that the appellant had exhorted the other accused to assault Leyaquat. In the absence of any substantive and cogent evidence adduced at the trial that

the appellant had exhorted the other accused to assault Leyaquat, the High Court, in our opinion, should not have convicted the appellant for the offence under Section 323 read with Section 114 Indian Penal Code. The High Court has found the evidence of the eye-witnesses to be unsatisfactory. It has also found that the eye-witnesses were prone to exaggerate things and to involve as many accused as possible. In the circumstances it was, in our opinion, not safe to base the conviction of the appellant on the aforesaid evidence. The evidence of exhortation is, in the very nature of things, a weak piece of evidence. There is quite often a tendency to implicate some persons, in addition to the actual assailant, by attributing to that person an exhortation to the assailant to assault the victim. Unless the evidence in this respect be clear, cogent and reliable, no conviction for abetment can be recorded against the person alleged to have exhorted the actual assailant. The evidence adduced at the trial in respect of the part alleged to have been played by the appellant is contradictory and far from convincing. We would, therefore, accept the appeal, set aside the conviction of the appellant and acquit him."

6. The fact remains that the accused no. 2

Harpreet Singh Bajwa @ Happy has already been enlarged

on bail by this Court. In that view, and in the backdrop of

the fact that the instant applicant / appellant has already

undergone incarceration for a period of more than 09

years on the charge of exhortation, and the appeals being

of the year 2019 and appeals of 2012 are yet to be heard,

we are of the opinion that the applicant / appellant Harpal

Singh has made out a case.

7. Accordingly, the second bail application (I.A. No.

8989 of 2023) is allowed. The judgment of conviction and

order of sentence dated 26.04.2019, rendered in Sessions