CRMPM/1578/2016 on 30 December 2016

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.

Cr. MP (M) No. 1578 of 2016

Date of decision: 30th December, 2016.

Kalam Ram

…...Petitioner Versus State of Himachal Pradesh.

……Respondent.

Coram

The Hon’ble Mr. Justice Dharam Chand Chaudhary, Judge. Whether approved for reporting?1No. For the petitioner : Mr. Ankit Aggarwal, Proxy counsel.

For the respondent : Mr. Varun Chandel, Addl. AG.

ASI Jai Singh, IO PS Bhawanagar,

District Kinnaur along with record.

Dharam Chand Chaudhary, J. (Oral)

The petitioner is an accused in FIR No.64/15 registered against him in Police Station Bhabanagar, District Kinnaur under Section 302 read with Section 34 IPC and Sections 27, 54 and 59 of Arms Act, whereas under Section 51 of Wildlife Protection Act. He has been arrested in this case on 15.09.2015 along with his co- accused Kalam Ram. The investigation in the case is complete. The challan has also been filed and the trial is in progress in the Court of learned Sessions Judge, Kinnaur at Rampur Circuit Court at Reckongpeo. The prosecution evidence has not yet commenced and the trial was previously fixed for recording the same in the trial Court during 14th to 16th December, 2016.

1 Whether the reporters of the local papers may be allowed to see the Judgment? yes.

2. The allegations against the accused-petitioner in a nutshell are that deceased Dev Raj, a resident of Village Naling, P.O. Rupi, Tehsil Nichar, District Kinnaur, had been away to Chhotang Kanda with his herd of sheep and goats about 130 in numbers. He had been residing with his sheep and goats at Chhotang Kanda temporarily. His son, the complainant Dev Kumar went there to see his father on 12.09.2015. When he reached around 10.00 a.m., neither sheep and goats nor his father was found present in the Dera. On this he whistled and in response thereto someone had replied by way of whistling itself. After some time accused-petitioner arrived there with herd of sheep and goats. On asking as to where is his father, the accused-petitioner informed the complainant that his father had been attacked by a bear in jungle. Simultaneously, he noticed the accused Gurjeet Singh, the co-accused of the accused-petitioner also passing through the passage nearby the Dera and going towards his house. The complainant and the accused-petitioner went to jungle in search of his father Devraj. He was found lying in the jungle. On asking as to what has happened, the deceased told the complainant that he had problem in urination and due to which there is pain in his stomach. He was lifted by the complainant and the accused petitioner, however he succumbed to the injuries on the way, while was being brought to the Dera.

3. The dead body when brought to home, bullet injuries were found on the person of the deceased. The matter was therefore reported to the Police. The Police has registered case and conducted investigation.

4. The challan against the accused-petitioner and his co- accused has been filed with the allegations that both of them went to jungle in search of ‘Karu’ herbs. They went to the Dera of the deceased. Accused-petitioner had 12 bore SBBL gun with him. After sometime, they went to jungle for hunting. One shot was fired from the gun on a bear, who got injured, however could not be traced out. They returned to Dera of the deceased. They stayed with him during the night. On the following day, they all went to the jungle in search of the injured bear. On observing movement in bushes, accused-petitioner fired a gun shot, which hit the deceased. They allegedly left the deceased in injured condition in the jungle and themselves came to Dera along with herd of sheep and goats. They falsely represented to the complainant that his father was attacked by bear. The Investigating Agency has suspected that both accused had murdered the deceased to grab his cattle i.e. sheep and goats.

5. Without lamenting much on the merits of the case and avoiding elaboration of the evidence, suffice would it to say that, prima facie, the deceased got injured on account of gunshot.

However, nothing can be said at this stage that accused-petitioner or for that matter the accused Gurjeet Singh had intention to kill him. As per the evidence collected by the Investigating Agency itself, on the previous day, accused-petitioner had fired a gunshot at a bear and on the following day they had gone along with deceased in search of the said bear to jungle. How they could have grabbed the sheep and goats of the deceased or complainant, nothing can be said even prima facie also at this stage.

6. In the given facts and circumstances, it is doubtful that the offence allegedly committed is under Section 302 of the Indian Penal Code. He is in custody for a period over one year. The investigation in the case is complete. The challan has also been filed and the proceedings in the trial against him are in progress. He is a local resident of Village Majhgaon under Police Station Nichar, District Kinnaur. There is no likelihood of his fleeing away from justice or not available at the time of his trial in the Trial Court. The apprehension of the Investigating Agency that he may temper with the prosecution evidence is also misconceived because suitable conditions in this regard can be imposed upon the accused- petitioner.

7. Therefore, in the given facts and circumstances and the reasons recorded hereinabove, in the opinion of this Court,

further detention of the accused-petitioner is not warranted. The application as such is allowed. Consequently, the accused, who has been arrested by the Police of Police Station, Nichar in connection with FIR No.64/15 dated 13.09.2015 is ordered to be released on bail, subject to his furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of learned trial Judge. He shall further abide by the following conditions:- That he; (a) shall regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; (b) shall not tamper with the prosecution evidence nor hamper the investigation of the case, in any manner whatsoever;

(c) shall not make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Investigating Officer; (d) shall not leave the territory of India without the prior permission of the Court.

8. It is clarified that if the petitioner-accused misuses his liberty or violates any of the conditions imposed upon him; the

Investigating Agency shall be free to move this Court for cancellation of the bail.

9. The observations hereinabove shall remain confined to the disposal of this petition and shall have no bearing on the merits of the case. The application stands disposed of.

Copy Dasti. December 30, 2016,

(Dharam Chand Chaudhary),

(ps) Judge.