YOGESH SETH Vs. STATE OF H P

JUDGEMENT

(1.) The aforesaid petitions have been filed, under Section 439 Criminal Procedure Code on behalf of the petitioners for the grant of bail to them. Since all the petitioners are accused in the same occurrence, these petitions can conveniently be disposed of by a common order and judgment. The relevant facts regarding the occurrence may be stated. In his order of framing charge against the accused-persons, the learned Sessions Judge has reflected the prosecution version in short. It is pointed out that per prosecution, the case is that the building known as Pratap Niwas located in Sunny side Solan originally belonged to one Smt. Bachan Kaur. It is alleged that late Itwari Lal was in possession of six rooms thereof. The remaining half portion was stated to be in possession of International Thermameter Factory who were tenants under the landlord. Later on, the said property was purchased by 5/Shri Bhola Singh, Dalwara Singh, Harchand Singh, Avtar Singh and Parkash Rana accused to the extent of 1/5th share each, on 27th October, 198.2. The mutations were attested and sanctioned on April 20, 1983. After the purchase of the said property, the accused persons wanted to evict late Shri Itwari Lal forcibly. A criminal case under Section 197/151 Criminal Procedure Code was instituted by the late Itwari Lal against Parkash Rana, Dalwara Singh and Harchand Singh accused, which is still pending in the Court of General Assistant. Subsequently, another case under Sections 324, 504,448, 506,380 and 147 Indian Penal Code was also instituted against some of the accused- persons which is pending decision in the Court of the Chief Judicial Magistrate, Solan, on the complaint of Smt. Shital Devi, the daughter-in-law of late Itwari Lal. 5/Shri Parkash Rana, Dalwara and Ranjit Kaur were impleaded as accused therein. Another criminal litigation at the behest of Shri Vyas Choudhary is also stated to be pending in the Court of Judicial Magistrate 1st Class, Ludhiana against Itwari Lal and Ved Prakash, his son, at the relevant time. As such, the litigation between the parties showed that there was a bitter hostility between the deceased and some of the accused persons and they wanted to evict the deceased and his family members there from.

(2.) According to the prosecution, all the accused in the early hours of 31st of May, 1983 apart from one absconder, after forming an unlawful assembly, armed with deadly weapons like dandas, hockey sticks, G. I. Pipes, iron rods, swords and a gun attacked the deceased who was occupying a room in Pratap Niwas and broke open the door thereof, where he was sleeping. Other members of the family of the deceased were sleeping in another house. The accused - persons are stated to have broken open the door of the said house also, besides having threatened them that they would be killed. Some of the accused armed with lethal weapons also brandished swords, pierced them through the window, with a view to threaten the complainant-party. With this preparation, the accused persons surrounded the entire area and threatened the members of the family to the effect that if they came out they would be done to death. The deceased was stripped naked and mercilessly beaten causing him as many as 12 injuries. The deceased was brought outside the room and was again beaten despite entreaties made by him to release him. The articles belonging to the deceased and their family members apart from their tenants were thrown out by some of the accused-persons under the protection of other accused, namely, Harchand Singh holding a gun in his hand, Pannu alias Dalwara accused holding a sword and some of the accused persons holding dandas in their hands, who were guarding the gate and the compound. The deceased was shifted to District Civil Hospital, Solan where he succumbed to the injuries at about 8 30 AM on the same day. It is pointed out that no fatal injury has been attributed to anyone of the accused-persons. It is contended by the learned counsel for the petitioners that Sanjiv Kapoor and Yogesh Sethi have not been named in the FIR. Sanjiv Kapoor is stated to be aged about 19 years. The contention of the learned counsel for the petitioners is that except for Harchand Singh who was armed with a gun and Pannu alias Dalwara who was armed with a sword, no other accused- persons were carrying any lethal weapons, except for blunt ones. It is further contended that the unlawful assembly as alleged was not constituted to commit the murder, and at the most the only object of the so-called unlawful assembly was to evict the deceased and the members of his family from the premises which were purchased by some of the accused-persons. As such, it is contended that they cannot be supposed to have committed an offence under Sections 302 Indian Penal Code.

(3.) The accused-persons stand already charged under Sections 148, 149, 323, 325, 302, 427,452, 460 and 506 Indian Penal Code. Shri Harchand Singh besides the above offences has also been charged under Section 27 of the Arms Act, 1959. It is not disputed that the case is at the trial stage and the accused-persons stand already charged for the aforesaid offence. They are lodged in the judicial lock-up. No recovery is to be made from them now. Without expressing any opinion on the merits of the case, I am of the view that Harchand Singh and Pannu alias Dalwara, who were armed with lethal weapons like a gun and a sword respectively, may not be released on bail at this stage. The other accused, namely, Yogesh Sethi, Sanjiv Kapoor, Jatinder Mohan, Bikar Singh, Sat Paul, Pritam Singh, Harbans Singh, Jagtar Singh and Vyas Choudhary are, however, ordered to be released on bail on their furnishing personal bonds in the sum of Rs. 10,000/- (Rs. ten thousand) each with one surety each in the like amount to the satisfaction of the learned Sessions Judge including Additional Sessions Judge Simla subject to the following conditions: