Aman Chaudhary vs State Of Himachal Pradesh

Vivek Singh Thakur, J

Petitioner have approached this Court, invoking provisions of Section 439 of Cr.P.C., seeking bail in case FIR No. 237 of 2011, dated 20.10.2011,

registered in Police Station Dhalli, District Shimla, H.P under Sections 302 and 381 of the Indian Penal Code.

Status report stands filed, wherein it is stated that on 20.10.2011 FIR in the case was registered on the basis of statement of complainant Nishant

Negi wherein he had narrated that his maternal grandfather was living alone in top floor of the house at Sanjauli and a domestic help Aman Chaudhary

(petitioner), sent by his uncle from Mumbai to assist his maternal grandfather, was residing with him since 14.10.2011 who was doing entire household

work, including cooking food. On 20.10.2011, complainant reached home at about 5:30 P.M., and found that his pet dog, who was kept with his

maternal grandfather during day time, was weeping bitterly and house of maternal grandfather was found locked from outside. Thinking that his

maternal grandfather might have gone somewhere, he came back to his room. At about 6:30 P.M., two ladies came to his room inquiring about his

maternal grandfather saying that they had come at noon also, but at that time also residence of his maternal grandfather was locked. Thereafter,

complainant inquired from his aunt, living in the lower floor of the same building, but she was not having any information about his maternal

grandfather. She called on mobile phone of maternal grandfather of the complainant but, after 2-3 rings, the call was disconnected from other side and

on trying again, response was that mobile was switched off. Thereafter, lock of the house of maternal grandfather of complainant was broken. In the

house, all other lights were switch of, except light of temple room, but radio was on. In the temple room, almirah was open and entire articles were

scattered. On switching on the light of drawing room, maternal grandfather of the complainant was found dead on the bed with serious injury on back

side of his head and one instrument used for cutting and hammering was also found lying on the floor with hairs and blood stacked with it. 10-12 lakhs

cash, Golden chain with locket of Durga Mata and three pairs of ear rings were missing, but 2-3 lakhs cash and four Golden Bangles were there.

Domestic help was found absent.

After registration of FIR, investigation was undertaken and petitioner was nabbed on 29.10.2011 in Bihar with the help of Bihar Police and with the

location of mobile phone and during his arrest Rs. 8,89,157/- and Golden Chain with locket of Durga Mata and one Rudraksh chain and Golden coin

were recovered from the petitioner.

As per status report, on interrogation during Police custody, petitioner had admitted the commission of offence, i.e. murder and theft. Challan was

presented in the Court on 27.1.2012 and thereafter trial was commenced in the Court of learned Sessions Judge, Shimla, wherein out of 48 witnesses,

19 witnesses have been examined. It has been stated in the status report that for passing of order dated 7.12.2018 by this High Court passed in a

petition filed by the petitioner further proceedings in trial has been stayed and case in the trial Court has been listed for further orders on 10.12.2021.

Learned counsel for the petitioner has submitted that petitioner is behind the bars since October, 2011 and after passing of 10 years, trial has not

been completed and, therefore, he is entitled for bail. It has further been submitted that at the time of alleged commission of offence, petitioner was

juvenile and, therefore, he had filed an application under Section 7 of Juvenile Justice (Care and Protection of Children) Act, 2000, before the trial

Court with prayer to forward the petitioner to Juvenile Justice Board claiming that his date of birth is 18.11.1995 and thus on the date of commission of

alleged offence, i.e. 20.10.2011 he was a juvenile in conflict with law, having age less than 18 years.

It is further case of the petitioner that aforesaid application was allowed by learned Sessions Judge, Shimla vide order dated 11.3.2013 and direction

was issued to forward the case of the petitioner to Juvenile Justice Board for trial in accordance with law. However, in Criminal Revision Petition No.

120 of 2013 filed by respondent-State order passed by learned Sessions Judge was set aside and matter was remanded back to the Trial Court vide

order dated 7.8.2013 to hold an inquiry and to reach at rightful conclusion with respect to claim of petitioner/accused in accordance with law after

affording opportunity to both parties.

The Trial Court, vide order dated 7.8.2015 had rejected the application of petitioner by holding that he was not juvenile at the time of commission of

offence.

In Revision Petition No. 320 of 2015 preferred by petitioner against order dated 7.8.2015, this High court had again remanded the matter to the Trial

Court to determine the question of juvenility of petitioner/accused in accordance with Rule 12(3)(b) of Juvenile Justice Rules.

In compliance of remand order, trial Court referred the matter for examination of petitioner by Medical Board, to be constituted in IGMC, Shimla.

The Medical Board concluded that age of the petitioner, on the date of commission of offence, was 20 plus or/minus years and thereafter vide order

dated 17.1.2017, Trial court referred the matter to PGI Chandigarh for constitution of another Medical Board to assess the age of petitioner. The said

order was challenged by the complainant before this High Court by filing Cr.MMO No. 189 of 2017, which was allowed vide judgment dated

18.8.2017 by setting aside the order dated 17.1.2017, referring the petitioner to PGI Chandigarh and direction was issued to learned Sessions Judge to

decide the issue in accordance with law, where-after, learned Sessions Judge vide order dated 26.4.2018 has dismissed the application of petitioner.

Petitioner has again assailed the order dated 26.4.2018 by filing Cr.MMO No. 512 of 2018, which is pending adjudication in this Court, wherein

further proceedings in the trial Court have been stayed on the prayer of the petitioner.

Learned Additional Advocate General has submitted that in present case age of the petitioner has been determined on the basis of documents

provided by the petitioner, which indicates that at the time of commission of offence, petitioner had completed age of 18 years, but thereafter on the

basis of some documents, which appear to be manipulated, petitioner is claiming himself as a juvenile at the time of commission of offence, but the

said plea stands repelled by the medical examination conducted by the Medical Board of IGMC Shimla and, therefore, petitioner cannot be considered

a juvenile at the time of commission of offence.

It has further been contended by learned Additional Advocate General that challan was presented well in time and it was in progress, however,

proceedings have been hampered for stay obtained by the petitioner against further proceedings in trial and, therefore, on that count petitioner cannot

seek bail alleging delay in conclusion of trial. Lastly, he has submitted that petitioner has committed a heinous crime, wherein he may be sentenced for

life or can be awarded capital punishment also and, therefore, length of detention of the petitioner is not relevant factor to be considered for enlarging

him on bail, particularly when trial is being delayed on account of petitioner. According to him Trial may have been continued till the stage of

arguments as on the basis of the said trial the final verdict may be announced by either Court or the Juvenile Justice Board, but petitioner has opted to

stall proceedings/trial and now is claiming bail on the question of delay which is impermissible.

Learned Additional Advocate General has further contended that for ample evidence on record about commission of offence by petitioner and

recovery of more than Rs. 8,00,000/-, Golden Chain and other material from the petitioner in his native place in District Katyar in State of Bihar, it is

beyond suspicion that petitioner is involved in heinous crime of murder, as recovered articles matches with the articles reported missing at the time of

lodging FIR when the complainant was not knowing who was the real culprit and, therefore, petitioner is not entitled for bail in the facts and

circumstances of the case.

Considering entire material placed before me, submissions of learned counsel for the parties, cause of delay in trial and gravity of offence, I do not

find that it is a fit case for enlarging the petitioner on bail. Accordingly, bail application is dismissed.