Saleem vs State of Himachal Pradesh

Sureshwar Thakur

1.The instant petition has been filed by the bail/applicant/accused, under, Section 439 Cr. P.C., wherein he seeks indulgence, of his being ordered to be

released from judicial custody, whereat he is extantly lodged, for, his allegedly committing offences, constituted under Section 302 and under Section

201 of IPC, under FIR No.85 of 2017, registered with Police Station, Bharmour, District Chamba, H.P.

The fateful occurrence is alleged to take place on 20.9.2017. The inquest report prepared in quick spontaneity thereof, makes an unfoldment, qua

the demise of the afore deceased, being a sequel, of his, suddenly falling onto the spill channel. In the post-mortem report also prepared in quick

spontaneity, vis-à -vis, the fateful incident, the reasons’ qua the afore demise, is ascribed, to be in result of cardio-pulmonary arrest, leading to

death. One Karam Deen, a close relative of the deceased, in his signatured statement, recorded instantaneously, vis-Ã -vis, the fateful occurrence, has

made disclosure(s), therein (a) that at the relevant time, owing to tripping, of, the electricity, hence water entering onto the spill-way,and, for

ascertaining the afore factum, the deceased hence moving onwards, upto a distance of 300 meters, and, his not returning to the place, whereat the

afore Karam Deen was positioned, b) also he has made disclosures therein qua the deceased owing to darkness, prevailing in the region concerned,

hence accordingly slipping, onto the spill-way, and c), AND his hence meteing his end. It is stated by the Investigating Officer concerned, that, the

afore disclosure(s), are in consonance with the deployment(s), of the afore workmen, at, the site concerned.

Be that as it may, after a month elapsing therefrom, the afore Karam Deen, a close relative of the deceased, and, who was for the afore reasons,

last in the company of the deceased, made an unsigned statement, under Section 161 Cr. P.C., before the Investigating Officer concerned, (i)

whereunder he unfolded qua the bail-applicant extra-judicially confessing his guilt to him. The afore rendered statement, would, carry weight only upon

i) the bail-applicant apparently holding the closest intimacy, with, him, and, hencehis taking to confide in the afore Karam Deen, However, the afore

factum is negatived by the factum, qua a) the deceased and the afore Karam Deen, rather being closely related to each other, b) the thesis

propounded in the subsequently recorded statement of Karam Deen, qua, at the relevant time, the bail-applicant and the deceased, being deployed to

perform, the, apt duties, at the relevant site, standing negatived by the afore rendered statement(s) before this Court, by the Investigating Officer

concerned,(c) with voicing(s) that at the time of the fateful occurrence, and, at the time when the body of the deceased stood recovered, from the

relevant site, rather both the bail-applicant, and, the deceased, being thereat deployed, to, render their duties.

In aftermath, it appears, that, the subsequently recorded statement, of, the afore Karam Deen, under Section 161 Cr. P.C., is, grossly contradictorily

vis-Ã -vis, the signed statement, made by the afore Karam Deen, in quick spontaneity, qua the fateful day, and, hence, is a sequel, of, a sheer

invention and, concoction, of the Investigating Officer concerned, (i) and, corrections in consonance therewith, as made in the post-mortem report,

and, scribed therein, on 13.1.2018, Are, also merely made, to render corroboration, to the subsequently rendered afore statement, by the afore Karam

Deen. Lastly, the learned Additional Advocate General has contended with vigor (ii) that if the deceased had suddenly fallen onto the spill way, hence

there was necessity for the post-mortem, making reflections, qua the lungs of the deceased, being filled with water, (iii) whereas, the afore reflections

being not borne therein, thereupon the subsequently rendered statement by the afore Karam Deen, hence carrying tenacity. However, the afore

submission is grossly flawed, as the Investigating Officer, has stated before this Court, that the level of the water existing, at the relevant time, in the

channel concerned, rather being minimal (iv) and wherefrom this Court draws an inference that hence there was no possibility, of, the deceaseds’

body submerging therewithin, nor hence water entering onto his lungs, (v) besides when the Investigating Officer has also stated before this Court,

that there was no blockade in the spill-way, for hence precluding the body of the deceased, , to, rather enter onto the channel, (vi) thereupon also, it

cannot be concluded, that, if any tenacity is assumed, vis-Ã -vis, the subsequently recorded opinion in the post-mortem, qua the deceased suffering,

demise owing to the afore reflections, and, their being, in also consonance with the subsequently rendered statement of karam Deen, (i) thereupon

also, no further conclusion can be erected, that, the body of the deceased was not passable, from, the spill-way hence onto the channel, wherefrom, it

was ultimately recovered, nor it can be concluded, that the occurrence, of, the body of the deceased, at the place, of, its recovery, being a sequel of

the bail-appicant, after inflicting ante-mortem injuries, upon the deceaseds’ person, his, throwing the deceaseds’ body, onto, the place

wherefrom, hence it stood discovered.

In aftermath, this Court is fortifyingly constrained, to, make an order that the bail-applicant shall be released from judicial custody, subject to

compliance, with, the hereinafter extracted conditions:-

i) That he shall furnish personal bond in the sum of Rs. 2,00,000/-, with two sureties, in the like amount, to the satisfaction of the trial Court concerned.

ii) That he shall join the investigation, as and when required by the Investigating agency.

iii) That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade

him from disclosing such facts to the Court or to the Police.

iv) That he shall not leave India without the prior permission of the Court.

v) That he shall deposit his passports, if any, with the Police Station, concerned.

vi) That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall be liable to be taken into custody.

Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the

matter uninfluenced by any

observation made herein above.