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2022 Supreme(HP) 760
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
VIVEK SINGH THAKUR, J.
Inder Dev – Petitioner
Versus
State of Himachal Pradesh – Respondent
Cr. M.P. (M) No. 2054 of 2022
Decided On : 01-12-2022
Advocate Appeared:
For the Petitioners: Sudhir Thakur, Karun Negi.
For the Respondent: Hemant Vaid.
Point of Law : It has been submitted that absence of name of petitioner in statements and also absence of blood on his clothes cannot be made basis to claim that petitioner was not involved in commission of offence in furtherance of common intention of all accused persons - As his presence is established through CCTV footage and he has been noticed running towards place of incident alongwith other co-accused with whom he had come to Cafe.
Headnote:
Code of Criminal Procedure, 1973 – Section 154 and 439 - Indian Penal Code - Sections 302, 307, 323, 325, 326, 201, 147, 148, 149, 440, 354, 354-B, 109 and 34 - Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 - Sections 3(1)(r), (s), (w) and 3 (2)(va) – Offence of Murder – Voluntarily causing hurt – Rioting,armed with deadly weapons – Common intention – Charged - An information was received in Police Station, Kullu that at near Saeubag at Chhururu, some mishap had occurred - Information was transmitted by Police Station staff to QRT team and to SI Kushal Kumar, then SHO, who was on patrolling - SI Kushal Kumar, out of his Patrolling Party, deputed ASI Vij Ram and Constable to reach Regional Hospital, Kullu to handle situation on arrival of injured and alongwith remaining team of Patrolling Party he rushed to spot - On reaching near Cafe Water Edge (hereinafter referred as Cafe), he met Constables of QRT Team of Kullu Police who were controlling traffic on spot, managing preservation of the spot and were waiting for Ambulance to shift injured persons from spot - Son of victim and other onlookers were also present on spot - Paras Ram was lying in katcha portion of road on side of road - He was bleeding badly and at some distance from him, in middle of road, his broken vehicle was there - On left front seat thereof injured was crying due to pains - SI instead of waiting for Ambulance directed QRT Team and son of victim to shift injured to Hospital in his Police vehicle - Therefore, it has been submitted that absence of name of petitioner in statements and also absence of blood on his clothes cannot be made basis to claim that petitioner was not involved in commission of offence in furtherance of common intention of all accused persons - As his presence is established through CCTV footage and he has been noticed running towards place of incident alongwith other co-accused with whom he had come to the Café . Para 17
Finding of Court :
Learned Additional Advocate General has further submitted that petitioner is an accused in a heinous crime under Section 302 IPC, wherein cold blooded murder has been committed after planning it - It is not a case where a person had expired in a scuffle or on account of an incident taken place for sudden provocation - In this case, it appears that victims were traced, trapped and beaten badly and, injuries are sufficient to draw conclusion that intention of assailants was clear - Taking into consideration submissions of learned counsel for petitioner as well as learned Additional Advocate General and also material on record including statements of victim, MLCs of Victim, nature of injuries received by victims, possibility of mental state of Yuma Devi at time of recording her statement under Section 154 Cr.P.C. and also statement and conclusion of investigation but without commenting upon merits of case, however, taking into consideration parameters and factors required to be taken into consideration at time of considering bail application.
Result : Petition is dismissed.
JUDGMENT :
VIVEK SINGH THAKUR, J.
1. Petitioner has approached this Court under Section 439 of the Code of Criminal Procedure (for short Cr.P.C.) seeking bail in case FIR No. 239 of 2021, dated 26.8.2021, registered in Police Station Kullu, District Kullu, Himachal Pradesh, under Sections 302, 307, 323, 325, 326, 201, 147, 148, 149, 440, 354, 354-B, 109 and 34 of the Indian Penal Code (for short ‘IPC’) Section 25 of Arms Act and Sections 3(1)(r), (s), (w) and 3 (2)(va) of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act, 1989 (herein after referred to as SC&ST Act).
2. Status Report stands filed. Record was also made available along with CCTV Footage of Cafe Waters Edge, being relied upon by the prosecution for identification of accused and other persons.
3. Prosecution case is that on 25.8.2021 at about 7:30 P.M. an information was received in Police Station, Kullu that at near Saeubag at Chhururu, some mishap had occurred. This information was transmitted by Police Station staff to QRT team and to SI Kushal Kumar, the then SHO, who was on patrolling. SI Kushal Kumar, out of his Patrolling Party, deputed ASI Vij Ram and Constable Om Parkash to reach Regional Hospital, Kullu to handle the situation on arrival of injured and alongwith remaining team of Patrolling Party he rushed to spot. On reaching near Cafe Water Edge (hereinafter referred as Cafe) at Chhururu, he met Constables of QRT Team of Kullu Police who were controlling the traffic on the spot, managing preservation of the spot and were waiting for Ambulance to shift injured persons from spot. Son of victim Yuma Devi and other onlookers were also present on the spot. Paras Ram was lying in katcha portion of road on side of road. He was bleeding badly and at some distance from him, in the middle of the road, his broken vehicle was there. On left front seat thereof injured Yuma Devi was crying due to pains. SI Kushal Kumar instead of waiting for Ambulance directed QRT Team and son of victim to shift injured to the Hospital in his Police vehicle. Thereafter on reaching the Hospital, treatment of injured was started in emergency. During treatment, statement of Yuma Devi was recorded under Section 154 Cr.P.C. by ASI Vij Ram, on the basis of which FIR was registered under Sections 307, 320, 147, 148, 149 IPC, Section 25 of Arms Act and Section 3 of Schedule Castes and Schedule Tribes (Prevention of Atrocities) Act.
4. Keeping in view serious condition of victims during night, they were referred to Medical College and Hospital, Nerchowk, Mandi. As provisions of SC&ST Act were attracted, therefore, in compliance of communication dated 26.8.2021 issued by Superintendent of Police, Kullu, investigation was transferred to Additional Superintendent of Police, Kullu.
5. As per medical record, following major injuries were found on the person of victim Yuma Devi and Paras Ram:
(a) Yuma Devi:
“1. Open wound left leg-blunt injury.
2. Lacerated wound left leg-blunt injury.
3. Swelling both arms-blunt injury.
4. Swelling distal phalange both arms-blunt injury.
5. Open wound left thumb blunt injury.
6. Fracture both bone forearm-grievous nature.
7. Fracture left leg-grievous nature.”
(b) Paras Ram:
“(1) Lacerated Wound (3x2 cm) over frontal region.
(2) Bruise (variable size) over right and left shoulder 10x3, 2x1 cm, 5x3 cm.
(3) Bruise (10x3 cm) over left shoulder.
(4) Open wound over right forearm (3x1 cm, 3x1 cm, 4x2 cm).
(5) Open wound over left forearm.
(6) Bruise (6x4 cm) over left thigh 9 cm from ASIS.
(7) Bruise (5x3 cm over Right thigh 10 cm from ASIS.
(8) Open wound (3x1, 4x2, 3x1.5 cm, 4x1) over left leg.
(9) Open wound (4x1) cm over right leg.
(10) Lacerated wound (6x3 cm) over left arm.
(11) Bruise (5x3 cm) over left knee.
(12) Bruise (variable size).
(13) fracture hank both bone forearm and leg both side.”
6. During investigation statement of Yuma Devi was also recorded on 2.9.2021 in Medical College and Hospital, Nerchowk, wherein she had given detailed statement about dispute and inc
