1 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.906 of 2009. Date of decision: 29.10.2009. Moti Ram … Petitioner Vs. State of H.P. … Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. S.K. Khanna, Advocate with Mr. Avinash Jariyal,Advocate. For the Respondent : Mr. Ansul Bansal, Additional Advocate General with Mr. R.P. Singh, Assistant A.G. Kuldip Singh, Judge. (Oral) This is an application application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.332/08 registered on 29.10.2008 at Police Station, Manali , District Kullu under Sections 302, 201, 120B IPC and Section 25 of the Arms Act. The respondent has filed status report. 2. Heard and perused the record. It has been submitted on behalf of the petitioner that petitioner has been falsely implicated in FIR No.332/08 registered on 29.10.2008 at Police Station, Manali. The learned counsel for the petitioner has submitted that investigation in the case is complete and challan has been submitted in the Court, even supplementary challan alongwith report of FSL, Junga has been Whether the reporters of the local papers may be allowed to see the Judgment? Yes 2 filed. According to learned counsel for the petitioner, the prosecution case is that Moti Ram, Bhagi Ram and one unidentified person along with Kuber alleged prosecution witnesses were on the spot when petitioner allegedly fired at Bhag Chand alias Bhagat Ram and as a result thereof Bhag Chand died. It has been submitted that petitioner is in the lock up for over eight months and till now charge has not been framed. The petitioner has children less then 10 years of age. The petitioner filed bail application which was rejected by learned Addl. Sessions Judge, Fast Track Court, Kullu. He filed bail application in the High court which was withdrawn. The petitioner thereafter filed another bail application which was again rejected by learned Addl. Sessions Judge, Fast Track Court, Kullu on 3.9.2009. The learned counsel for the petitioner has submitted that co-accused Bhagi Ram has been released on bail. The alleged cartridge used for firing at Bhag Chand has not been connected with the gun by Blastic Expert. The statement of prosecution witness Kuber recorded during investigation does not inspire confidence. The learned counsel for the petitioner has submitted that story is highly improbable. The petitioner is ready to furnish bail bonds in accordance with the directions of this Court. The learned counsel for the petitioner has submitted that petitioner may be released on bail. 3. The bail application has been opposed by the learned Addl. Advocate General on the basis of status report filed in the case. He has submitted that challan was filed in the Court on 3.1.2009 and for one reason or other the charge could not be framed. The next date of hearing is fixed on 5.11.2009 for proper 3 order. He has submitted that eye witness Kuber has named petitioner for the commission of offence. It has come in the postmortem report of the deceased that death occurred due to fire from the gun. The learned Addl. Advocate General has not denied that as per State Forensic Science Laboratory, Junga Report No.2602/SFSL/Physics(253)/08 dated 24.1.2009 the fired cartridge (E/3) has not been fired from the shotgun (E/1). However, the learned Addl. Advocate General has stated that in the letter dated 30.6.2009 of the Assistant Director, State Forensic Science Laboratory, Junga addressed to Station House Officer, Police Station, Manali in case FIR No.332/08, Police Station, Manali it has been clearly stated that traces of firing were found in the barrel of the SBBL gun bearing number HIM 32698 ( Exhibit E/1 in the report no.2602/SFSL/Phys(253)08) which indicate it to have been fired prior to examination in the laboratory. 4. I have gone through the statement of prosecution witness Kuber recorded under Section 161 Cr.P.C. who has stated that Moti Ram from his gun had fired at Bhag Chand as a result of which Bhag Chand fell down . Moti Ram reloaded his gun, he thought that Moti Ram would kill him also and he jumped down in the jungle. The learned counsel for the petitioner has stated that as per prosecution case Moti Ram had fired at Bhag Chand from behind but he sustained injuries on his forehead. The learned counsel for the petitioner has also tried to point out discrepancies in the statement of Kuber recorded under Section 161 Cr.P.C. regarding alleged recovery of handkerchief. According to him Kuber allegedly 4 revisited the spot on 30.10.2008 and he saw the handkerchief on that date when the recovery was made on 28.10.2008. The learned counsel for the petitioner has submitted that the prosecution story is highly improbable and in these circumstances the petitioner is entitled to bail. In support of his contention the learned counsel for the petitioner has relied Bhausaheb Nagudhavare vs. State of Maharashtra and another SCAcq Cr.J-28, Sunil K. Sinha vs. State of Bihar AIR 1999 SC 1533, Jeet Ram vs. State of H.P. 2002(3) Shim L.C. 349, Krishna Devi vs. State of Punjab 2000(1) RCR( Criminal) 60, Charanjit Singh vs. State of Punjab 2000(1) RCR( Criminal) 247, Joginder Singh vs. State of Punjab 2002(4) RCR( Criminal) 577, Surinder Kumar alias Monu vs. State of Haryana 2000(1)RCR(Criminal) 431. I have gone through these judgments. The aforesaid judgments are not applicable in the facts of present case. The alleged discrepancies in the statement of Kuber, if any, shall be considered by trial Court at appropriate stage. The prosecution witness Kuber in his statement under Section 161 Cr.P.C. has named the petitioner for the commission of the offence. The impact of blastic report relied by learned counsel for petitioner will be seen during trial. There are serious allegations against petitioner of committing offence punishable under Section 302 IPC. The petitioner has failed to make out any case for grant of bail, resultantly the application is dismissed. 5. The observations made in the order shall not be construed as expression of opinion on the merits of the case. ( Kuldip Singh ) Judge. October 29, 2009 (sks)