1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.M.P.(M) No.270 of 2009 with Cr.M.P.(M) No.271 of 2009 Cr.M.P.(M) No.272 of 2009 Decided on: April 27, 2009 ___________________________________________________ 1. Cr.M.P.(M) No.270 of 2009 Visheshar Lal ……..Petitioner. Versus State of H.P. ..Respondent. 2. Cr.M.P.(M) No.271 of 2009 Roshan Lal ……..Petitioner. Versus State of H.P. …..Respondent. 3. Cr.M.P.(M) No.272 of 2009 Ram Krishan ……..Petitioner. Versus State of H.P. …..Respondent. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting1? No. For the petitioners : Mr. T.R. Chandel, Advocate. For the respondent : Mr.J.S. Guleria, Asstt. Advocate General. ________________________________________________ SURINDER SINGH,J (oral) : The bail petitioners in the above petitions are accused in FIR No.120/08 registered in Police station Jhakri under Sections 302 read with Section 34 of the Indian penal Code allegedly causing the death of Shri Whether reporters of the Local papers are allowed to see the judgment? Yes. 2 Luxmi Kant of another village, hereinafter to be referred, the deceased. The petitioners failed to get the bail from the court of sessions before whom they are facing trial for the aforesaid offence as such the instant application has been moved under section 439 Cr.P.C. for their enlargement on bail. I have heard the learned counsel for the parties and have carefully examined the report filed on behalf of the State and have perused the police investigation file. In short, the facts placed before me are that the deceased and Kumari Neelima both were the students of the same school i.e. Govt. Sr. Sec. School Dhar Gaura. In the year 2008, Kumari Neelima was studying in +1 whereas the deceased was one year senior to her, studying in +2. Both fell in love with each other and sometimes in the year 2008, both of them eloped from their respective villages. Thereafter the father of the deceased proposed the marriage of Luxmi Kant (deceased) with her which of course was settled later, but the petitioners herein, who are the residents of the same village as that of Kumari Neelima and were related to her were opposed to the said marriage. In fact, they wanted the marriage of Neelima with one Shri Jeewan Lal. It is alleged that deceased, after his engagement with Neelima had been visiting her house. In such a pursuit 3 during the intervening night of 1st/2nd October, 2008, the deceased visited the house of Kumari Neelima. The petitioners who were engaged in the painting work in the vicinity entertained some doubt and they are alleged to have intercepted the deceased and Neelima in doubtful circumstances. Thereafter, the petitioners invited the deceased to take liquor and all of them took liquor in the open outside. In the morning of 2.10.2008, the dead body of the deceased was found behind the cowshed in the village of petitioners. The main fact which weighed with the learned Sessions Judge while rejecting the bail application was that in the circumstances aforesaid, the petitioners have a motive to commit crime and further that the doctor on the postmortem examination had found serious injury on the right leg of the deceased. I have also perused the postmortem report. The dead body was having red abrasion of the size 4.5 X 1.0 cm present on the mid interior aspect of right leg and lacerated wound (avulsion) of size 12.3 cm muscle deep over the right ankle which, in the opinion of the doctor could be possibly caused by blunt trauma. On the chemical examination of viscera and blood of the deceased, it was found to have contained ethyle alcohol and phosphine gas. In the opinion of the 4 doctor, the deceased had died as a result of asphyxia secondary to phosphine gas poisoning in a case of alcohol consumption. During the investigation of this case, the police is alleged to have taken in possession an empty bottle from the spot which was also sent for examination to the Forensic science Laboratory, it also contained the traces of ethyl alcohol and the other bottle contained simple water, but no container of either of phosphine gas or phosphine tablets was recovered either from the petitioners or from the spot. The petitioners are sought to be connected with the alleged offence on the basis of the circumstantial evidence viz. recovery of the vial alleged to be of pesticide at the instance of Ram Krishan, recovery of one of shoe of petitioner by Visheshar and a Chorsi by Roshan Lal under Section 27 of the Evidence Act besides the statements of other witnesses with respect to taking of liquor by the petitioners with the deceased vis-à-vis the statement of Kumari Neelima, recorded under Section 164 of the Code of Criminal procedure, who admitted to have love affairs with the deceased and his visit during the intervening night of 1st/ 2nd October, 2008 at her residence but she did not open the door. On consideration of the matter, without commenting upon the merits and demerits of the case, 5 which may prejudice the case any of the parties, in the circumstances aforesaid, in my opinion, the petitioners have a case for their bail. Therefore, the petitioners are hereby allowed bail on their furnishing the bail bonds in the sum of Rs.20,000/- each with one surety of the like amount to the satisfaction of the learned Chief Judicial Magistrate Kinnaur at Reckong Peo/ Judicial Magistrate Ist Class, Rampur who so ever is available at the headquarter at Rampur, on the following conditions that the petitioners shall: (i) appear before the learned trial court on all dates where the case is pending; (ii) not tamper with the prosecution evidence in any manner; (iii) not make any inducement, threat or promise to any person acquainted with the facts of case so as to dissuade him from disclosing such facts to the court. Needless to say that if the petitioners flouts any of the conditions aforesaid, the liberty of bail shall stand cancelled. Any observation made hereinabove shall not effect the merits of the case. The copy of this order be sent forthwith to the learned Chief Judicial Magistrate/ learned Judicial Magistrate, Rampur for information and necessary action at his end. 6 The applications stand disposed of. The investigation police file has been returned to the learned Assistant Advocate general. Orders Dasti. (Surinder Singh), Judge. April 27, 2009. (Pds)