Himanshu v. State of Uttarakhand

Himanshu, who have been implicated in FIR No. 0031/2023 registered at Police Station Gopeshwar, District Chamoli, for offences under Sections 302, 120B, 201, and 34 IPC. 2

2. Since all four bail applications have arisen from the same FIR, i.e., FIR No. 31 of 2023, they are being considered and decided upon through this common order. For the sake of convenience, only the facts of Bail Application No. 101 of 2024 are being considered and discussed.

3. It is apt to mention at this stage that the first Bail Application No. 2767 of 2023, filed on behalf of the applicant, Sumit Kumar, was dismissed as withdrawn on 18.03.2024.

4. The applicants have been in judicial custody since

10.11.2023 in connection with FIR No. 0031/2023, registered under Sections 302, 120B, 201, and 34 of the IPC at Police Station Gopeshwar, District Chamoli.

5. The prosecution case, as per the FIR lodged by Smt. Jamna Panwar on 29.10.2023, is that her husband, Naveen Singh Panwar, an X-ray Technician at the District Hospital, Gopeshwar, had left for emergency duty on 24.10.2023 but did not return home. That she last spoke with her husband at 8:55 PM on 24.10.2023, during which he informed her that his colleagues, Darshan Barthwal and Sharad, were calling him from behind.On 25.10.2023 at 6:54 AM, she was informed that her husband was found unconscious with severe head injuries on the roof of the Employment Office, Gopeshwar. The deceased was initially treated at District Hospital Gopeshwar, referred to AIIMS Rishikesh, and subsequently admitted to Himalayan Hospital, Jolly Grant, where he succumbed to his injuries. Initially, an FIR was registered under Section 307 IPC against unknown persons, but during the course of the investigation, the case was altered to Sections 304, 120B, 201, and 34 IPC. Subsequently, after the death of the victim, Section 302 IPC was added.

6. It is also pertinent to mention at this stage that earlier, by order dated 13.08.2024 passed by the coordinate Bench of this 3 Court, a short-term bail was granted to the applicant, Sumit Kumar S/O Sunil Kumar, on medical grounds.

7. Heard Mr. Mukesh Rawat and Mr. B.N. Molakhi learned counsel for the applicants, Mr. S.C. Dumka learned A.G.A. for the State of Uttarakhand, and Mr. Lalit Sharma learned counsel for the victim (through video conference). The records were also perused.

8. The applicants have been implicated in the case as they were allegedly the last persons seen with the deceased.The prosecution contends that there is prima facie evidence of their involvement in the conspiracy leading to the unnatural death of the victim.

9. It has been alleged that the accused were present at a hotel near the Employment Office on the night of October 24, 2023. During this time, the deceased reportedly recorded a video of them, which allegedly led to an altercation. The prosecution contends that the recording provoked the accused, and this provocation ultimately led to the incident.

10. The applicants submit that they have been falsely implicated in the present case, as there is no direct evidence establishing their involvement in the alleged offence.

11. The entire case is based on circumstantial evidence, with no eyewitness to the incident. It is submitted that neither the CCTV footage nor any other material evidence conclusively proves the applicants’ role in the alleged crime.

12. The charge sheet has been filed, and all the material witnesses have been examined during the investigation. Therefore, further incarceration of the applicants is not warranted.

13. The applicants further submit that they were allegedly last seen with the deceased on 24.10.2023 at around 6:50 PM at a hotel near the Employment Office. The statements of the last-seen 4 witnesses, namely Shiv Singh Rana, Narendra Singh Rana, and Jagdish (the hotel owner), recorded under Section 161 Cr.P.C., suggest that a verbal altercation took place between the deceased and the applicants after the deceased allegedly recorded a video of them. However, the applicants submit that the last-seen witnesses did not observe any physical altercation or assault taking place.

14. Additionally, as per the FIR, the complainant last spoke to her husband at 8:55 PM, during which he informed her that his colleagues, Darshan Barthwal and Sharad, were calling him from behind. It is submitted that this crucial fact indicates that the deceased was in the company of others after the applicants had already location, thereby breaking the chain of circumstances on which the case is based.

15. The applicants submit that they had no motive to commit the alleged offence. It is argued that there was no prior enmity or conflict between the deceased and the applicants. The only alleged dispute, as per the case record, was a minor verbal exchange at the hotel over videography, which does not indicate any intention to commit murder. It is further submitted that there is no evidence to establish any prior conspiracy or meeting of minds among the applicants, which is essential for invoking Section 120B IPC (Criminal Conspiracy).

16. The applicants further submit that the site plan does not support the allegations against them. It is stated that the deceased was found on the roof of the Employment Office toilet, which had no accessible stairs, raising the possibility that he fell from a height due to intoxication.

17. The applicants further submits that there has been an unexplained delay of five days in lodging the FIR. The incident allegedly took place on 24.10.2023, whereas the FIR was registered only on 29.10.2023. It is argued that such a delay raises serious 5 doubts about the credibility of the case, as no reasonable explanation has been provided.

18. The applicants further submit that no recovery has been made from their possession. It is stated that a steel rod, allegedly used in the crime, was recovered based on the disclosure statement of co-accused Ritik, recorded under Section 27 of the Indian Evidence Act. However, it is submitted that a confessional statement made in police custody is inadmissible in law unless corroborated by independent evidence, which has not been provided.

19. It is further submitted the applicants have cooperated with the investigation and have been in judicial custody since 10.11.2023, with no risk of tampering with evidence or influencing witnesses.

20. The applicants submit that they are young individuals with no prior criminal history. Applicants Rahul Kumar (aged 28 years), Sumit Kumar (aged 26 years), Kapil Kumar (aged 25 years), and Himanshu (aged 24 years) have no past convictions, and there are no allegations of habitual criminal behaviour against them. They further submit that their continued incarceration will cause them undue hardship.

21. It is further submitted that the bail rejection order dated

06.03.2024 passed by the learned District & Sessions Judge, Chamoli, is based solely on circumstantial evidence, without considering the absence of direct involvement, lack of motive, and contradictions in the case. It is submitted that in cases based on circumstantial evidence, bail should be granted when the chain of circumstances does not conclusively establish guilt.

22. Per contra, the State submits that the applicants are directly involved in the heinous crime of murder, as established by the evidence collected during the investigation. The present case is 6 not one of mere suspicion but is supported by strong circumstantial evidence, including last-seen evidence, witness statements, CCTV footage, and the confessional statements of the accused persons. The gravity of the offence, punishable under Section 302 IPC, along with the applicants' active role in the crime, renders them ineligible for bail.

23. The State submits that the last-seen witnesses—Shiv Singh Rana, Narendra Singh Rana, and Jagdish (the hotel owner)— have provided categorical statements under Section 161 Cr.P.C., placing the applicants at the scene of the crime. As per their statements, recorded during the investigation, the applicants, along with co-accused Ritik, were present at a hotel near the Employment Office on 24.10.2023 at approximately 6:50 PM, where they were seen consuming alcohol. The deceased was also present at the same location and had recorded a video of the applicants, leading to a heated argument. The applicants were last seen following the deceased after this incident, and soon thereafter, the deceased was found in an unconscious state with fatal head injuries.

24. The State submits that the chain of circumstantial evidence remains unbroken, and the applicants' presence at the scene, their verbal altercation with the deceased, and the subsequent events clearly indicate their involvement. The State further alleges that the post-mortem report states the cause of death as coma and haemorrhage due to an antemortem head injury. The nature of the injuries, as noted in the report, suggests that they were caused by a blunt object.

25. The State submits that the alleged weapon used in the crime—a steel rod—was recovered on 10.11.2023 at the instance of co-accused Ritik, as recorded in the recovery memo. The recovery was made pursuant to the disclosure statements of the accused persons, which provide critical evidence linking them to the crime. 7 While the applicants claim that no weapon was found in their direct possession, it is well established in law that a recovery made at the instance of a co-accused is admissible under Section 27 of the Indian Evidence Act.

26. The State submits that during police interrogation, the applicants made confessional statements, wherein they disclosed details of their altercation with the deceased. Although a confession to the police is not independently admissible under Section 25 of the Indian Evidence Act, it led to the discovery of key evidence, including witness testimonies and the recovery of the weapon.

27. The State submits that the site plan negates the applicants’ defence that the deceased accidentally fell due to intoxication. It confirms that the toilet roof, where the deceased was found, had no accessible stairs or direct entry, making it improbable for him to have reached there on his own. These circumstances strongly suggest that he was deliberately thrown or dragged to that location.

28. The State further submits that CCTV footage collected from nearby locations corroborates the witness statements. Footage from the Employment Office at approximately 10:45 PM on

24.10.2023 captured three mobile flashlights on the roof, where the deceased was later found unconscious. This contradicts the applicants' claim that they had left the hotel and had no further interaction with the deceased. Moreover, the applicants have failed to provide any plausible explanation for their actions after the altercation.

29. The State submits that the delay in lodging the FIR has been reasonably explained. The complainant was initially unaware of the applicants' involvement, which only came to light during the deceased's medical treatment and subsequent police investigation. The delay in registering the FIR was not deliberate 8 and does not weaken the case, as the investigation has gathered substantial material against the applicants.

30. The State further contends that the nature and gravity of the offence preclude the grant of bail. It submits that if released on bail, the applicants are likely to influence witnesses and tamper with evidence, as key prosecution witnesses include local hotel staff and individuals who were present at the scene. The threat to witnesses is real and imminent, given that the applicants belong to the same locality.

31. The State submits that the applicants face charges under Sections 302, 120B, 201, and 34 IPC, all of which are serious and non-bailable offences. The punishment prescribed for murder (Section 302 IPC) is life imprisonment or death, and in such cases, bail should only be granted in exceptional circumstances, which the applicants have failed to demonstrate.

32. During the arguments, Mr. Lalit Sharma, learned counsel for the victim, contended that there were clear markings of blood on the railing, which indicated and suggested that the victim was severely injured. He bled profusely due to his lethal injuries and ultimately succumbed to death. While attempting to escape from the clutches of the assailants, his blood trails clearly reflected his plight and demonstrated the deliberate assault inflicted upon him by the applicants.

33. In view of the gravity of the offence, last-seen evidence, CCTV footage, and the recovery of the alleged weapon, the State strongly opposes the bail applications and prays for their dismissal in the interest of justice.

34. However, this Court is of the opinion that no forensic analysis has been conducted on the blood said to have been traced, nor has a DNA profile been prepared in this context. 9

35. Bail jurisprudence in cases based on circumstantial evidence is well established. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116, the Supreme Court held that for circumstantial evidence to sustain a conviction, it must establish a complete chain leading to the guilt of the accused beyond a reasonable doubt. In Kalyan Chandra Sarkar v. Rajesh Ranjan (2004) 7 SCC 528, it was held that bail should be granted where the evidence does not unambiguously point to the accused’s guilt and when continued incarceration is unwarranted. Furthermore, In Shailendra Rajdev Pasvan v. State of Gujarat, (2020) 14 SCC 750, the Supreme Court underscored in cases relying on circumstantial evidence, the prosecution must establish a complete chain of events that conclusively points to the guilt of the accused, excluding any other hypothesis.

36. In the present case, the applicants have been in custody since 10.11.2023. The prosecution case hinges on circumstantial evidence, with no direct proof of their involvement. There are no eyewitnesses who could clearly confirm that the applicants assaulted the deceased.

37. The last-seen theory, while relevant, is weakened by the fact that the complainant last spoke to the deceased at 8:55 PM, indicating the presence of other individuals after the applicants allegedly the scene. The absence of direct evidence, contradictions in witness statements, and the lack of clear motive create reasonable doubt regarding the applicants' guilt.

38. In view of the principles laid down in State of Rajasthan v. Balchand (1977) 4 SCC 308, wherein bail is considered the rule and jail the exception, coupled with the lack of cogent evidence conclusively establishing guilt, this Court finds that the continued incarceration of the applicants is not justified. 10 The charge sheet has been filed, and all material witnesses have been examined, reducing any risk of evidence tampering.

39. That this court does not agree with the contentions addressed by the learned counsel of the victim-deceased. The argument that the presence of blood markings on the railing indicates the victim’s fatal injuries and the applicants' deliberate culpability is not substantiated by conclusive forensic evidence. The blood evidence remains untested, and no forensic or DNA analysis has been conducted.

40. No forensic analysis has been conducted to ascertain the origin of the blood, nor has any DNA profiling been carried out to establish a direct link between the alleged blood stains and the victim.

41. Additionally, the alleged recovery under Section 27 of the Indian Evidence Act is not conclusive in proving the applicants’ guilt at this stage. The prosecution’s theory regarding the use of flashlights by the applicants remains unproven. The CCTV footage merely shows mobile flashlights, which does not definitively link the applicants to the crime. In the absence of corroborative scientific evidence, mere assertions cannot be the sole basis for denying bail to the applicants.

42. In light of the absence of direct evidence, inconclusive circumstantial evidence, lack of forensic support, and applicants' clear criminal history, this Court finds that the applicants have made out a case for bail.

43. The bail applications are allowed, and the applicants Rahul Kumar, Sumit Kumar, Kapil Kumar, and Himanshu are directed to be released on bail, subject to the following conditions: (i) Each applicant shall furnish a personal bond of ₹1,00,000/- with two sureties each of the like amount. 11 (ii) They shall not directly or indirectly contact any prosecution witnesses. (iii) They shall cooperate with the trial proceedings and shall not leave India without prior permission. (Ashish Naithani, J.) 11.03.2025 SB SHIKSHA BINJOLA DN: c=IN, o=HIGH COURT OF UTTARAKHAND, ou=HIGH COURT OF UTTARAKHAND, 2.5.4.20=3410ef86ae41ec9fbabcd5dba6b3a2c24b5aa08b 09c12f21822fbd40bf639b1c, postalCode=263001, st=UTTARAKHAND, serialNumber=FD80A2D028949381C52796A542D7FF0A9 BED00E67B5283D205F18FE29BDF5DD9, cn=SHIKSHA BINJOLA