IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA Cr.M.P.(M).No.157/2009. Date of Decision: March 24 ,2009. _______________________________________________________________ Santoka Ram …Petitioner. Versus State of Himachal Pradesh. ….Respondent. Coram Hon’ble Mr.Justice S.S.Thakur, J. Whether approved for reporting1? For the petitioner : Mr.M.S.Chanel, Sr.Advocate with Mr.N.S.Chandel, Advocate For the respondent : Mr. J.S. Guleria, Assistant Advocate General. ___________________________________________________________ Surinder Singh, J, The petitioner was arrested on 12.10.2008 in case F.I.R.No. 219/ 2008 dated 15.9.2008 under Sections 302, 364, 396, 201 read with Section 120-B of the Indian Penal Code in Police Station, Haroli, District Una allegedly hatching conspiracy of causing murder of Dilbag Singh (deceased) on 11th /12th September,2008 and thereafter committing theft of ‘Innova’ car and disposing it off. The present application has been moved by the petitioner under Section 439 Cr.P.C. for enlarging him on bail. Notice of the application was given to the respondent. Pursuant to that a report has been filed and the arguments have been heard. Whether the reporters of local newspapers are allowed to see the Judgment? yes. 2 In brief, the prosecution story is that the deceased was a driver in ‘Innova’ vehicle bearing No.PB 08- BC-4042 owned by his cousin Jarnail Singh. Deceased Dilbag Singh was having an Airtel Mobile No. 098725-91771 with him. The dead body of the deceased was noticed by Sh. Balbir Singh lying in ‘Hardawala jungle’ under the jurisdiction of Police Station, Haroli, District Una. The matter was reported to the police. They arrived at the spot and found a driving license and voter’s ID-Card during the search of the dead body. His name, parentage and complete address were found which established its identity. After preparing the inquest report the dead body was sent for the autopsy to the Regional Hospital, Una and thereafter to Medical College, Tanda, H.P. The doctors could not establish the cause of death. No ante-mortem injury was found on the dead body and the report of FSL revealed the contents of liquor in viscera. On 15.9.2008 Jarnail Singh informed the police that the deceased was his cousin. He had taken his ‘Innova’ car at about 3.30 p.m. on 11.9.2008, on leisure trip. He came to know about his murder on 13th September, 2008 and the missing of his car and made a local inquiry, then he found that on 11.9.2008,the deceased had been receiving telephone messages (SMS) and calls on his Mobile from Mobile No. 099884-94105 w.e.f 5 p.m upto 10.30 pm. The calling number of the SIM was in the name of one Sh. Manish, Seth 3 Telecommunication, Bus Stand Kartarpur Kapurthala Road, District Jallandhar, which was sold to him without any I.D. proof. He further disclosed that the deceased was last seen on 11.9.2008 at 5.30 p.m. at Kartarpur and raised his apprehension that the calling number person might have committed the murder of the deceased with the help of co- accused. The police recorded his statement under Section 154 Cr.P.C. on the basis of which F.I.R. was lodged. During the investigation, it came to light that the SIM Card of Mobile No. 099884-94105 was purchased on 11.9.2008 by Mohit Kumar and not by Manish Kumar, the younger son of Sukesh Kumar, Seth Enterprises, Kartarpur (Punjab). The co- accused Ravi Kumar resident of Chima, Tehsil Phillaur, District Jallandhar was found talking to the deceased at bus stand, Kartarpur. He was arrested and thereafter other accused Ravi Kumar, Rohit Dhingra and Deepak Rai Bhutt were also arrested. On 27.9.2008 Ravi Kumar made a disclosure statement under Section 27 of the Indian Evidence Act on the basis of which the police recovered bag slippers and the clothes of the deceased from ‘Chhitha Mandir Mohalla Shanti Colony’, Yamunanagar. Pursuant to the disclosure statement made by another co-accused Brij Mohan @ Billa, one amplifier, stereo and T.V. screen pertaining to the aforesaid ‘Innova’ vehicle were got recovered from Sukhvinder Singh @ Kala. 4 On 28.9.2008 Sukhvinder Singh @ Kala was arrested in this case. The police also took into possession the toll-tax receipt from Gagret barrier at the instance of co- accused Rohit Dhingra on 11.9.2008. On 30.9.2008 the statement of Sohan Singh owner of the tea-stall was recorded. He disclosed that the aforesaid co-accused persons had taken the tea in his stall on 11.9.2008. He identified co-accused Ravi Kumar and Rohit Dhingra accompanied the deceased in the vehicle. On 30.9.2008 the police proceeded to the house of Vivek Kumar Tandan to whom the said ‘Innova’ vehicle was alleged to have been sold, on the pointing out of Sukhvinder Singh @ Kala. On 12.10.2008 the petitioner Santokh Ram @ Sokha petitioner was arrested. On 14.10.2008 the statement of Deepak Rai was recorded under Section 164 Cr.P.C. by the Judicial Magistrate, Una. The police came to know that the said ‘Innova’ vehicle was found abandoned by the police at Lalroo (Punjab). It was taken into possession by the police on 6.10.2008 in this case. The test identification parade (TIP) was conducted on 16.10.2008 where the petitioner herein was identified by witness Sukhdev Singh in the presence of learned Judicial Magistrate, Ist Class-II, Una, to be the same person to whom he had seen him talking with the deceased at Taxi stand Kartarpur on 11.9.2008. 5 On 19.10.2008 at the instance of petitioner Santokha Ram, the spot map was prepared. On 20.10.2008 another accused person Narender @ Sodi and Dharmender @ Sonu were also arrested and the statement of Deepak Rai was also recorded under Section 164 Cr.P.C. On 23.10.2008 the memo with respect to their pointing out was prepared. The police also took into possession the telephone details of the mobile phones of the accused persons. During the investigation the police also took into possession the details of telephone No 99884-94105 the SIM Card of which is alleged to have been purchased on 11.9.2008 without any I.D. proof and it was activated at 4.30 p.m. on the same day and at 5.43 p.m. a call was made on the telephone number of the deceased whereafter the said vehicle was found to have been hired by the accused persons. The SIM card of the mobile purchased on 11.9.2008, was used in the IMEI No. 356269014835920 (mobile No. 94647-16506) of co- accused Ravi Kumar without any I.D. proof. The original number of accused Ravi Kumar was found not in used w.e.f. 3.37 p.m. to 4.30 p.m, on 11.9.2008. Thereafter, the original phone number was used by him on 12.9.2008 at 1.23 p.m. The mobile phone of the deceased was found not in use w.e.f. 10.43 p.m. onwards on 11.9.2008. Precisely, the result of the investigation was that the accused persons had hatched conspiracy and committed 6 the theft of ‘Innova’ vehicle after finishing the deceased and these persons were allegedly employed by Brij Mohan @ Billa to accomplish the aforesaid task and paid Rs.3,000/- . On the interrogation of the accused persons, the police propounded the story that six sleeping pills were added in the coke served to the deceased but it yielded no effect. During the intervening night of 11th and 12th September, 2008 at about 2 a.m. they went from Peernigaha (Una) towards Hoshiarpur. On the way when they came across Harda Wala Jungle, the petitioner was asked to stop the vehicle on the pretext that petitioner was feeling unwell and came out along with other accused persons from the vehicle. Dharmender @ Sonu was sitting on the rear seat, with the help of yellow colour scarf, he choked the throat of the deceased and pulled it back. Both hands of Dilbag Singh were caught hold by the petitioner and his co-accused Ravi Kumar and Narender @ Sodi had pressed the neck of the deceased. After some time Dilbag Singh lost the senses and fell on the left side of his seat. He was dragged out by the petitioner, co-accused Rohit Dhingra, Narender Sodhi and Ravi and was thrown into the gorge. Thereafter, the petitioner took charge of the driving and fled away along with his co-accused from the spot. On 12.9.2008 all the aforesaid five persons went to another accused Brij Mohan @ Billa. Thereafter they kept the slippers and clothes of the deceased with Ashok Kumar brother of Billa and went to Paharganj (Delhi) via Yamunanager (U.P.) in the house of Sukhvinder Singh @ Kala . When they could not sell 7 the vehicle it was left with said Sukhvinder Singh accused and returned back to village Nurmahal (Punjab). It is alleged that Sukhvinder Singh kept the stereo and amplifier along with screen with him. The vehicle was sold in East Patel Nagar, Delhi to one Vivek Kumar Tandan only for Rs.13,500/-. When he came to know that this was a theft vehicle it was removed from Delhi and was abandoned in Lalroo area of Punjab. The challan against the accused persons has been presented in the Court. I have heard the learned counsel for the parties and have carefully perused the investigation file. The dead body of the deceased was putrefied. Therefore, no superficial or other injuries were said to have been found on it. The cause of death could not be assessed due to the advanced stage of the decomposition. The doctor also did not find any deep ligature marks on the neck. The time between the death and the post mortem was found to be more than 2 to 5 days. On 14.9.2008 without any opinion the dead body was referred to Medical College, Tanda for expert opinion and also for forensic examination where it was further examined by some other doctors on 15.9.2008. However, they did not find any evidence of the fatal injury. On receiving the report of the chemical analyst, traces of ethyl alcohol were detected from viscera. To connect the petitioner with the alleged offence the prosecution has relied upon the following circumstances: (i) The petitioner was seen at the taxi stand, Kartarpur with the deceased on 11.9.2008 and later on he was 8 identified during the Test Identification Parade (T.I.P.) to be the same person. (ii) The petitioner along with other accused was seen by Deepak Rai on 17.9.2008 at Delhi moving during the night in a taxi, as disclosed by him in his statement recorded under Section 164 Cr.P.C. According to him, after some time Sonu, Sodhi, Billa and Sukhu petitioner came to the vehicle where he was sleeping. They started quarreling with each other over the sale of ‘Innova’ car No.PB-08- BC-4042. When Deepak Rai asked as to why it was sold on a cheaper rate, the petitioner started beatings him and threatened him not to disclose this fact to anyone. It is pertinent to note that Deepak Rai was also arrayed an accused but later discharge was sought by the police. On considering the matter in its entirety on the circumstances put forth to prove the case against him, in my considered opinion, the petitioner has a case for his bail. Accordingly he is ordered to be enlarged on bail on his entering into the bail bond in the sum of Rs.25,000/- with two sureties of the like amount to the satisfaction of the learned Chief Judicial Magistrate, Una. This bail shall be subject to the following conditions that the petitioner: (i) shall present himself in the court and the police whenever required to do so in this case; (ii) shall not directly or indirectly, make any inducement, threat or promise to any person 9 acquainted with the facts of the case so as to dissuade him from disclosing such facts to the court or to any police officer; (iii) shall not tamper with the prosecution evidence in any manner, whatsoever. The liberty of bail shall be cancelled in case of the petitioner making breach of any of the conditions above. However, it is made clear that any observation made hereinabove, is strictly for the disposal of this application and shall have no bearing on the facts of the case, on merits. Let an authenticated copy of this order be sent to the learned Chief Judicial Magistrate, for information and necessary action at his end. The application stands disposed of. (Surinder Singh), Judge. March 24, 2009(R)