In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Misc. No.M-5511 of 2010 ..... Date of decision:15.3.2010 Baldev Singh .....Petitioner v. State of Punjab .....Respondent .... Present: Mr. Sandeep S. Majithia, Advocate for the petitioner. ..... S.S. Saron, J. Heard learned counsel for the petitioner. The petitioner seeks pre-arrest bail in a case registered against him on 26.3.2009 for the offences under Sections 302, 307, 326, 324, 323, 382, 427, 120-B, 148 and 149 Indian Penal Code and Sections 25 and 27 of the Arms Act, 1959. The FIR in the case has been registered on the complaint made by Kuljit Singh son of Kulwant Singh with respect to the incident that occurred on 25.3.2009 at 9.00 p.m. It is alleged by the complainant-Kuljit Singh that his maternal uncle's son Sukhdev Singh alias Buta son of Nishan Singh resident of Fatehgarh Churian was admitted in Civil Hospital at Fatehgarh Churian due to injuries that he had received. On 25.3.2009, the complainant along with his brother Avtar Singh @ Goldi, Inderjit Singh and his son Amrinder Singh along with his uncle's son Dilbagh Singh went to Civil Hospital in the Verna car of the complainant's brother's son, namely, Avtar Singh to give food and to enquire about the well being of Sukhdev Cr. Misc. No.M-5511 of 2010 [2] Singh. It was about 9.00 p.m. when the complainant side was talking amongst themselves after serving food to Sukhdev Singh. In the meantime, Satnam Singh alias Sattu armed with .12 bore double barrel gun, Gurnam Singh armed with Kirpan, Gulshan Singh alias Guchha armed with Datar, Baldev Singh Bazigar (petitioner) who is the son of the lady Sarpanch armed with Kirpan, Major Singh armed with .12 bore double barrel gun, Hira Singh armed with Datar, Braham Singh alias Barma armed with .12 bore gun, Sonu alias Phul alias Rajesh Kumar armed with Datar, Manna armed with Kirpan and two unidentified persons armed with Datar whom the complainant could identify, suddenly came there near the complainant side. Then Satnam Singh alias Sattu raised a `Lalkara' to catch hold of the complainant side and that no body should escape and they be killed. Satnam Singh alias Sattu fired a shot with .12 bore double barrel gun towards Avtar Singh alias Goldi-brother of the complainant with an intention to kill him. The gun shot hit Avtar Singh near his left arm pit and he fell on the ground. In the meantime, Major Singh fired a gun shot with his double barrel gun with an intention to kill. Some pellets of which struck Avtar Singh-brother of the complainant near his right arm and some pellets of the shot also struck on the right hand of Dilbagh Singh, the complainant's maternal uncle's son. Gurnam Singh gave three-four blows with his Kirpan on the right leg of Avtar Singh alias Goldi, which hit him on the shin of right leg. In the meantime, Inderjit Singh-brother of the complainant came forward so as to rescue them. At this Gulshan alias Guchha, Baldev Singh Bazigar (petitioner) and Hira Singh gave injuries to Inderjit Singh with their respective weapons. In the meantime, the complainant, his son Amrinder Cr. Misc. No.M-5511 of 2010 [3] Singh and material uncle’s son Dilbagh Singh came forward to rescue the injured. Then Rajesh Kumar alias Phul alias Sonu and Manna and the two unidentified persons caused injuries with their respective weapons to the complainant, his son Amrinder Singh and his cousin Dilbagh Singh. Sonu alias Phul alias Rajesh inflicted injuries with his weapon, which hit the complainant on the right side of his neck near the ear, left calf and above the right knee. Brahma Singh alias Barma fired with his .12 bore double barrel gun due to which the window panes of the hospital room broke and all the injured were smeared with blood. Then the complainant side raised an alarm of `mar ditta’, `mar ditta’ and then the aforesaid assailants forcibly snatched the licensed revolver of Avtar Singh alias Goldi – brother of the complainant from his pocket and fled away from the place of the occurrence along with their weapons in their two cars of Accent and Ford Fiesta make after damaging their Verna car. Since the doctor was not available in the hospital and also on account of severe injuries received by Avtar Singh, they arranged a vehicle and were taking him to Amritsar, however, he succumbed to his injuries on the way. The motive for the occurrence was that two days earlier in the fair of Baba Rode Shah, Rajkaran Singh alias DC, cousin in of the complainant had a scuffle with these persons. The above said persons with their common intention had committed high handedness and had caused the death of Avtar Singh alias Goldi and also injured the complainant side. The complainant along with others was going to the Police Station with the dead body of his brother Avtar Singh for giving information that the Police party met them. It was requested that action be taken. Learned counsel for the petitioner has contended that in fact the Cr. Misc. No.M-5511 of 2010 [4] petitioner was not at the place of the incident as he had on 22.3.2009 gone to Village Fatehabad, District Tarn Taran in the evening and on the same day he went to Noormahal, District Jalandhar. He had gone to Village Fatehabad and Noormahal for inviting his relatives for the first birth anniversary of his son which fell on 2.4.2009. It is stated that the he left for Delhi from Phillaur Railway Station on 23.3.2009. A photostat copy of the Railway ticket (Annexure-P.2) has been attached with the petition. It is submitted that the petitioner reached Delhi on 23.3.2009 where he stayed at the house of Ajit Singh. On 24.3.2009, the petitioner felt severe pain in his stomach and due to the said pain he got high fever. On 25.3.2009, he got himself checked up from Shubh Nursing Home (Govt. Regd.), Hastsal Village, New Delhi where he was medically examined vide OPD Reference No.10172. He had complained of fever, abdominal pain and loose stool. He was advised some precautions and was given antibiotic medicines; besides, rest for two days was advised. Baldev Singh (petitioner) did not improve in his pain and health and, therefore, he again went to the Hospital and the doctor admitted him in the hospital on 27.3.2009. He was diagnosed as a case of suffering from enteric fever. He was treated and then discharged from the hospital on 28.3.2009 at 8.00 p.m. However, on 29.3.2009, he was again admitted in the Hospital because of the same severe pain in his abdomen. He remained admitted and under the treatment of doctor. He was again discharged on 1.4.2009 at 11.00 a.m. A photostat copy of the medical record/documents certificates have been placed on record as Annexure-P.3. It is submitted that the petitioner was not involved in the occurrence as has been alleged and he has been implicated in the case Cr. Misc. No.M-5511 of 2010 [5] due to factionalism in the village. The father of the petitioner had won the election of Sarpanch of the village which could not be digested by the opposition party. Kuljit Singh son of Kulwant Singh had been keeping a grudge against the father of the petitioner and due to the said grudge he had named the petitioner in the FIR. Otherwise the petitioner has no connection with the occurrence. It is also submitted that the incident occurred on 25.3.2009 at 9.00 p.m., however, as per medical report (Annexure-P.4), the injured Inderjit Singh reached the hospital at 8.00 a.m. on 26.3.2009. Therefore, it is submitted that he reached the hospital 11 hours after receiving 14 injuries and it is not possible that he did not take any medication for 11 hours. Moreover, in the MLR it is recorded that the injuries had been caused 7-8 hours earlier to his examination. The injuries were even otherwise on non-vital parts of the body and this showed that the injuries may have been self inflicted. After giving my thoughtful consideration to the matter, I find no merit in the same. The plea of alibi that is sought to be raised by the learned counsel for the petitioner is not to be gone into at this stage and that too on an application while considering the grant of pre-arrest bail. The petitioner is stated to be a part of the unlawful assembly which had caused the death of Avtar Singh by fire arms. The petitioner is attributed a Kirpan blow on the person of Inderjit Singh who received 14 injuries in the occurrence. The case of the petitioner that he had left for Delhi by train on 23.3.2009 is not to be examined or gone into at this stage. In case, he left for Delhi on 23.3.2009, the same does not seem to be of much consequence as the incident had occurred on 25.3.2009 at 9.00 p.m. The petitioner was admitted in the Hospital at Delhi on 27.3.2009. It is alleged by the Cr. Misc. No.M-5511 of 2010 [6] petitioner that he had gone to Delhi and was checked up at Shubh Nursing Home (Govt. Regd.), Hastsal Village, New Delhi vide OPD Reference No.10172. In this regard, learned counsel has referred to the Discharge Summary (Annexure-P.3). The said document is a photostat copy and is illegible. The date on the certificate is obscured and is illegible. Date and time of admission is illegible. The date of discharge and time is also illegible. The petitioner has submitted the original discharge summary of Shubh Nursing Home (Govt. Regd.). In the said certificate, the date and time of admission has been mentioned as 29.3.2009 at 11.40 p.m. and date and time of discharge is mentioned as 1.4.2009 at 11.00 a.m. The incident in the case had occurred on 25.3.2009 at 9.00 p.m. Another prescription slip of Shubh Nursing Home (Govt. Regd.) dated 25.3.2009 has been shown in which Baldev Singh is stated to have complained of fever for the last two days, pain in abdomen and motion not clear for last 3-4 days. Besides, a reference is made to one certificate which is also attached and marked as Annexure-P.3. The said certificate states “To whosoever it may concern” and is without date. It merely records that the petitioner came on OPD Reference No.10172 on 25.3.2009 having complaint of fever, abdominal pain and loose stool. Oral antibiotic and antipyretic were given for two days but he was not improving so he was admitted at Shubh Nursing Home on 27.3.2009 at 11.00 p.m. vide IP No.3044. Patient was investigated and diagnosed as a case of enteric fever. The patient was treated conservatively and discharged on persistent request on 28.3.2009 at 8.00 p.m. He was on oral medication and he was again admitted for same problem on 29.3.2009 at 11.40 p.m. The certificate attached with Annexure-P.3 has been given by Cr. Misc. No.M-5511 of 2010 [7] Dr. Daulat Singh which reads as under:- “TO WHOMSOEVER IT MAY CONCERN It is to certify that Mr. Baldev Singh Age 26 yrs. s/o Mr. Kashmir Singh R/o A-29 Chander Vihar, Nilothi Extension, came on OPD Ref. No.10172 on Dt. 25.3.09, having complaint of fever, abdominal pain and loose stool. Oral antibiotic and antipyretic given for 2 days, but patient was not improving so he was admitted at Shubh Nursing Home on 27.3.2009 at 11 P.M., IP No-3044. Patient was investigated and diagnosed as a case of Enteric Fever. Pt. was treated conservatively and discharge on persistent request on Dt. 28.3.09 at 8 P.M. on oral medication. Again he was admitted for same problem on Dt. 29.3.09 at 11.40 p.m., IPD No-3048. IV fluid and IV Antibiotic given and discharge in stable condition on Dt. 01.04.09 at 11 A.M. Sd/- Dr. DAULAT SINGH M.B.B.S. Director SHUBH NURSING HOME (Govt. Regd.) 87A, Hastsal Village,N.D.-59” It appears that the above certificate which is attached as Annexure-P.3 is an after thought and has been prepared later. The ultrasound of the petitioner was done at Dr. Rajiv Ultrasound Allied on 28.3.2009. Other investigations, it is submitted were also carried out on 28.3.2009. The effect of the documents is not to be gone into at this stage and it is for the petitioner to make submissions in this regard before the Cr. Misc. No.M-5511 of 2010 [8] Investigating Officer or the Court as the case may be. The allegations against the petitioner are serious. The question that he has been involved due to factionalism in the village also does not appear to be of much significance as it is the case of the petitioner that his father had won the election of Sarpanch and the rival party could not digest the same. However, it is not shown as to what connection Kuljit Singh-complainant has with his father and the rival faction. As regards the allegation that the injured reached the hospital 11 hours after the occurrence is also devoid of any merit. It may be noticed that Avtar Singh-brother of the petitioner died due to fire arm injuries. Therefore, when one of the brothers had died and the other brother had received injuries the delay of 11 hours in reaching the hospital is not of much consequence. The fact that it is recorded in the MLR that the duration of the injuries as 7-8 hours earlier to the examination is hardly of any consequence as whether the injuries were received 7-8 hours or 11 hours before examination of the patient is not to be gone into at this stage and even otherwise the time of receipt of injuries normally are of probable duration and are not the exact duration which is opined by the doctor. The petitioner has also referred to affidavits of Mahnga Singh, Gurdev Singh, Bachitter Singh and Nirmal Singh to contend that the petitioner was not present at the place of occurrence on 25.3.2009. It may be noticed that all the affidavits are of Amritsar and are on the same format and they appear to have been procured. In case the petitioner was admitted in Delhi, he is to get his solemn affirmation from there and that too of his relatives at Delhi that he was there. These are in the nature of hearsay Cr. Misc. No.M-5511 of 2010 [9] evidence and are not of much consequence. The conditions regarding grant of pre-arrest bail under Section 438 Cr.P.C. are materially different from that an accused seeking post- arrest bail or for that matter even a convict seeking suspension of sentence pending appeal before a higher Court. In the case of pre-arrest bail the advantage of having custodial interrogation of eliciting more and useful information by the prosecution is to be kept in view. The present case is one of murder and the petitioner is alleged to be a member of unlawful assembly. The plea of alibi and other contentions as raised are liable to be urged before the investigating authorities. In case the investigating authorities find allegations against the petitioner to be without merit it is not bound to arrest the petitioner and can seek his discharge otherwise. However, this Court is normally not to interfere in the investigation process by granting pre-arrest bail and that too in a case involving murder. In the circumstances, the criminal miscellaneous petition is dismissed. March 15, 2010. (S.S. Saron) Judge *hsp*