GURMESH BISHNOI Vs. STATE OF HARYANA

JUDGEMENT

(1.) THE present petition for bail under section 439 of the Code of Criminal Procedure has been presented in case FIR No. 216 dated 26th April, 1994, registered under Sections 3O2/201 read with section 34 of the Indian Penal Code at Police Station Civil Lines, Hisar.

(2.) THE incident in question had occurred on 25th April, 1994 when the dead body of Ram Dayal who was working as a servant with Dr. Balbir Singh, brother of petitioner No. 1 (and a co-accused in this case) was found lying in the outer lawn of the residential house occupied by Dr. Balbir Singh and the petitioners at Hisar. It appears that on finding the dead body, Dr. Balbir Singh went to Adampur to inform Raghunath, the elder brother of the deceased and returned to Hisar with him and thereafter took the dead body to the Hospital. A daily Diary Report was also recorded in the Hospital at the instance of Raghunath in which it was stated that Dr. Balbir Singh had come to Adampur that morning and informed him that Ram Dayal had suddenly died during the night and that it appeared that he had taken some poisonous substance or had been bitten to death by some animal or insect. The dead body was subjected to post-mortem on the same day but the doctor opined that the cause of death was asphyxia. The petitioners as also Dr. Balbir Singh apprehending their arrest in the aforesaid FIR, moved an application for anticipatory bail before the Sessions Judge, Hisar, who while granting bail to the petitioners declined the same to Dr. Balbir Singh. The Sessions Judge was largely influenced by the fact that the story given to Raghunath by Dr. Balbir Singh which had found mention in the DDR was erroneous and an attempt by him to side track and mislead the investigation and that this fact itself indicated a guilty mind. Aggrieved by the denial of bail Dr. Balbir Singh filed Crl. Misc. No. 13799-M of 1994 in this court but the same was dismissed on September 19, 1994. In the meantime, the State of Haryana moved for the cancellation of the bail granted to the petitioners vide Crl. Misc. No. 14242-M 1994 and this application was allowed on October 7, 1994 and the anticipatory bail granted by the Sessions Judge Hisar to the petitioners was also cancelled. The learned Judge while allowing the aforesaid application in favour of the State held that anticipatory bail was required to be sparingly given in a case of murder and that the accused were called upon to explain the circumstances leading to the death of their domestic servant and further that the murder was the handiwork of more than one person as Dr. Balbir Singh was a seriously handicapped person. The petitioners were arrested on 17.10.1994 and thereafter moved an application for bail under section 439 Cr.P.C. before the Sessions Judge, Hisar, but the same has been dismissed vide the impugned order dated 8th November, 1994. The learned Sessions Judge did notice the contentions of the rival parties, but while dismissing the application he did not record any specific reasons for doing so. Hence this petition.

(3.) AFTER hearing learned counsel for the parties and going through the record, I find that this petition deserves to succeed. It will be seen from the orders referred to above, made by this Court that the allegation with regard to the suspicious conduct of the accused, in fact, pertained to Dr. Balbir Singh only. Admittedly, even as per the prosecution case, it was Dr. Balbir Singh who went to Adampur to meet the brother of the deceased, that is, Raghunath and it was at his instance that Raghunath recorded a Daily Diary Report which, as later transpired, did not give the correct version of events. The observations of this Court that it was Dr. Balbir Singh who has tried to sidetrack the investigation are, therefore, pertinent. Even while cancelling the anticipatory bail granted to the petitioners it was observed by the learned Judge that in view of the various judgments cited before him, anticipatory bail in a murder case was a rare event and should not ordinarily be ordered and it was in the background of these observations that the learned single Judge went into the matter and cancelled the anticipatory bail that had been granted to the petitioners. The considerations for the grant of bail under section 439 Cr.P.C. are, however, somewhat different and a heavier onus is cast on the prosecution to show that there was sufficient evidence on the file to deny bail to the accused. It will be seen from the orders made at the time when the anticipatory bail was granted by the Sessions Judge and thereafter cancelled by this Court that they do not indicate the direct involvement of the petitioners and that they were sought to be involved on the basis of suspicion. The story put-forth with regard to the stolen ornaments of the wife of Gurmesh Bishnoi, to my mind, does not stand scrutiny. It is inconceivable that a domestic servant accused of theft would be allowed to continue to work as such more than two months after the date of the theft. Moreover, if is conceded that no case was registered or any attempt made to inform the police with regard to the alleged theft. The making of the two trunk calls from the telephone number of Gurmesh Bishnoi to Chandigarh also does not in any way advance the case of the prosecution. Assuming for a moment that the calls were made yet no inference can be drawn that these were made by Gurmesh Bishnoi himself or were made because he was apprehensive about the incident in question.