New Delhi :- JUDGEMENT OVERVIEW

COURT :  Supreme Court of India (Division Bench (DB)- Two Judge)

JUDGEMENT NAME : Bhoopendra Singh Versus State of Rajasthan & Anr. Appeal (Crl.), 1279 of 2021,

JUDGEMENT DATE : Oct 29, 2021

RELATED SECTIONS : INDIAN PENAL CODE, 1860

Section 302 – Punishment for murder

Section 147 – Punishment for rioting

Section 149 – Every member of unlawful assembly guilty of offence committed in prosecution of common object

Section 148 – Rioting, armed with deadly weapon

Section 323 – Punishment for voluntarily causing hurt

Section 307 – Attempt to murder

Section 341 – Punishment for wrongful restraint

Section 336 – Act endangering life or personal safety of others

 

IMPORTANT PARAGRAPH :

Dr Dhananjaya Y Chandrachud, J

  1. This appeal arises from a judgment dated 11 August 2021 of a Single Judge

at the Jaipur Bench of the High Court of Judicature for Rajasthan. By the judgment

impugned in the appeal, the High Court has allowed the fifth bail application of the

second respondent.

 

2 .FIR No. 732 of 2017 was registered at Police Station Mathuraghat for

offences punishable under Sections 147, 148, 149, 323, 341, 307, 302 and 336 of

the Indian Penal Code 1860. While allowing the application for bail, the Single Judge has observed:

“6. Taking note of the fact that petitioner has remained in

custody for a period of three years and ten months, she is a

female, no overt act is assigned to her in the present case,

co-accused Vijay Pal against whom there was allegation has

been given benefit of bail, after rejection of fourth bail

application by this Court, there is variance in prosecution

story, earlier the presence of accused was s[h]own at the tea

shop and later on presence of accused according to witness

is shown at the place of occurrence and conclusion of trial will

take time, hence, I deem it proper to allow the fifth bail

application.”

  1. The appellant is the son of the deceased-Daansingh- who was the Sarpanch

of the village. It has been alleged that there was a prior enmity between the accused

and the deceased, as a consequence of which the husband of the second

respondent together with certain other members of his family and sharp shooters

shot at Daansingh in September 2015. Daansingh survived the incident. FIR No.

466 of 2015 under Section 307 of the IPC was registered at Police Station Kumher.

The second respondent was arrested and charge-sheeted. The evidence of

Daansingh was to be recorded at the criminal trial. A fortnight prior to the recording

of his evidence, Daansingh was murdered on 11 September 2017.

  1. On 12 September 2017, FIR No. 732 of 2017 was registered at Police Station

Mathuraghat by the brother of the appellant for offences punishable under Sections

147, 148, 149, 323, 341, 307, 302 and 336 of the IPC and Sections 3/25 and 4/25 of

the Arms Act 1959. The second respondent was arrested on 3 October 2017. After

investigation, the final report under Section 173 of the Code of Criminal Procedure

Code 19732 was submitted on 28 December 2017 in which the second respondent

has been named as an accused.

5.The second respondent was denied bail by the High Court on 6 April 2018, 5

September 2019 and 8 September 2020. In its order dated 5 September 2019, the

High Court noted:

“5. […] I.O. is present in person in the Court, who has

produced the calls details. It is informed by Investigating

Officer that two mobiles were recovered from the petitioner

and from I.M.E.I. number, it is revealed that different sims

were used in these mobiles and two sims that was used,

petitioner was in contact with Prahlad and her son Anek

Singh, who is also accused in this case. It is also informed

that day prior to the incident, petitioner and one Bhuria came

to the office of A.S.I and threatened to murder Dansingh. It is

also informed that petitioner informed the shooter about

movement of the deceased and she was constantly in touch

with Prahlad and her son-Anek Singh.”

 

  1. By its order dated 8 September 2020, the High Court, while dismissing the

fourth bail application, also observed that the second respondent was not co-

operating in the investigation.

  1. The High Court has allowed the fifth application for bail of the second

respondent observing that

(i) The second respondent is a woman;

(ii) She has been in custody for three years and ten months;

(iii) No overt act was assigned to her in the present case;

(iv) Co-accused Vijaypal has been granted bail;

(v) There is a variance in the story of the prosecution in respect of the location of

the second respondent; and

(vi) The conclusion of the trial is likely to take time.

8 Mr Namit Saxena, counsel appearing on behalf of the appellant submitted

that:

 

(i) The High Court is in error in proceeding on the basis that no overt act is

attributed to the second respondent since the charge-sheet, which has been

submitted after investigation, indicates that

  1. The second respondent was using as many as four sim cards and was

in constant contact with Prahlad, the co-accused who was hired as a

sharp shooter, and her son Anek, who is also a co-accused; and

  1. The second respondent was the custodian of the weapons used in the

crime;

(ii) The High Court had in its order dated 8 September 2020 specifically noted

that the second respondent was not co-operating in the investigation of the

case;

(iii) Four earlier bail applications have been rejected and there was no change in

the circumstances to warrant the grant of bail;

(iv) No parity could be claimed with the co-accused Vijaypal since he has not

been charge-sheeted;

(v) The investigation has revealed that the deceased was murdered with the aid

of a hired sharp-shooter shortly before he was to depose at the criminal trial in

the case arising out of FIR No. 466 of 2015 under Section 307 of the IPC;

(vi) The second respondent, as the prosecution alleges, was following the car of

 

the deceased and was providing instructions about his location to the sharp-

shooter; and

 

(vii) Even the brother of the appellant, Gopal Singh, was assaulted shortly before

his testimony was to be recorded.

9 On the other hand, Mr Vivek Sood, senior counsel appearing on behalf of the

second respondent submitted that:

(i) The incident took place outside the house of the deceased in which event, the

role attributed to the second respondent is rendered meaningless;

(ii) There has been a clear over-implication of members of the family in the FIR

since as many as six persons are alleged to have shot at the deceased

whereas only two bullets were recovered;

(iii) Two of the persons named in the FIR have not been charge-sheeted;

(iv) The second respondent is sixty years old and was released on bail after being

in custody for three years and ten months;

(v) 28 out of 58 witnesses have been examined and the trial is likely to take some

time; and

(vi) Anek Singh with whom the second respondent is alleged to have been in

contact is her son, while Prahlad, the alleged sharp-shooter, is a relative and

hence there would be nothing untoward in the mobile contact.

10 Ms Ritika Jhurani, counsel appearing on behalf of the State of Rajasthan

submitted that:

(i) The High Court has not considered the gravity of the crime while granting bail

to the second respondent;

(ii) No parity could have been claimed with co-accused Vijaypal who was granted

bail since he was not found to be involved in the incident and was not charge-

sheeted; and

(iii) On the other hand, the second respondent was found to be directly involved

in the conspiracy of a pre-meditated murder.

  1. In Anil Kumar Yadav v. State (NCT of Delhi)3

, this Court has spelt out some

of the significant considerations which must be placed in the balance in deciding

whether to grant bail:

“17. While granting bail, the relevant considerations are:

  • nature of seriousness of the offence;

(ii) character of the evidence and circumstances which are peculiar to the accused; and

(iii) likelihood of the accused fleeing from

justice; (iv) the impact that his release may make on the

prosecution witnesses, its impact on the society; and (v)

likelihood of his tampering. No doubt, this list is not

exhaustive. There are no hard-and-fast rules regarding grant

or refusal of bail, each case has to be considered on its own

merits.

BHOOPENDRA SINGH

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