Dismissed

Praveen Dhama Alias Dumpy Dhama v. State of Uttarkahand

Uttarakhand HC8 Nov 2021BA2/19/2021

Case brief

AI extract

What is this about?

The High Court rejected two second bail applications filed by accused persons in a murder case. The court held that the applicants did not establish any substantial change in circumstances compared to their first rejected bail applications which were dismissed on identical grounds.

What did the court decide?

Second bail applications for Vineet and Praveen Dhama were rejected due to lack of change in circumstances.

Praveen Dhama Alias Dumpy Dhama Vs State of Uttarkahand — Bail and Remand | Uttarakhand HC (2021)

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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL

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THE HON’BLE SRI JUSTICE ALOK KUMAR VERMA

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08^TH NOVEMBER, 2021

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SECOND BAIL APPLICATION NO. 7 of 2021

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Between:

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Vineet	…Applicant
and
State of Uttarakhand.	…Respondent
Counsel for the Applicant	: Mr. Maneesh Bisht, learned counsel.
Counsel for the respondent	: Mr. Pratiroop Pandey, learned A.G.A. assisted by Mr. Pramod Tiwari, learned Brief Holder for the State.
	: Mr. Lalit Sharma, learned counsel for the informant- Rakesh Kumar.

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with

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SECOND BAIL APPLICATION NO. 19 of 2021

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Between:

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Praveen Dhama alias Dumpy Dhama …Applicant and State of Uttarakhand. …Respondent

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Counsel for the Applicant : Mr. Arvind Vashisth, learned Senior Advocate assisted by Mr. Vikas Anand, learned counsel.

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Counsel for the respondent : Mr. Pratiroop Pandey,

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learned A.G.A. assisted by Mr. Pramod Tiwari, learned Brief Holder for the State.

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: Mr. Lalit Sharma, learned counsel for the informantRakesh Kumar.

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Hon’ble Alok Kumar Verma,J.

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These two bail applications are the second bail applications for grant of regular bail to the applicants/accused persons, who have been arrested in connection with FIR No.568 of 2017, registered with Police Station Rudrapur, District Udham Singh Nagar for the offence punishable under Section 302 IPC. The first bail applications of these two applicants have been rejected by the Co-ordinate Bench of this High Court vide order dated 29.08.2020, passed in BA1 No.584 of 2018, “Vineet vs. State of Uttarakhand” and BA1 No.596 of 2020 “Praveen Dhama alias Dumpy Dhama vs. State of Uttarakhand” respectively.

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Facts, to the limited extent, are that an FIR was lodged at 00.10 hrs. on 30.09.2017. According to the first information report, on 29.09.2017 at 08.00 p.m., when the informant Rakesh Kumar along with his brother Amendra Pal Singh alias Bittu (deceased) and his nephew Sanjeev Pal Singh was returning home on a scooty, the present applicants along with another co-accused stopped them and started firing. The informant, the deceased Amendra Pal Singh alias Bittu and Sanjeev Pal Singh tried to run away, but the applicants shot Amendra Pal Singh alias Bittu dead. The informant and Sanjeev Pal Singh had raised alarm, at which, the applicants ran away. The inquest proceedings and post-mortem of the dead body of the deceased were conducted and after completion of the

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investigation, the charge-sheet was filed against applicant Vineet and three co-accused persons. The charge-sheet was not filed against present applicant Praveen Dhama alias Dumpy Dhama. During the trial, on an application under Section 319 of the Code of Criminal Procedure, 1973, the present applicant Praveen Dhama alias Dumpy Dhama was also summoned to face trial along with other co-accused persons.

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Heard the learned counsel appearing for the applicants, the learned A.G.A. appearing for the State and the learned counsel for the informant.

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Mr. Arvind Vashisth, the learned Senior Advocate, appearing for the applicant-Praveen Dhama alias Dumpy Dhama submitted that the applicant had been falsely implicated in this matter, therefore, after investigation, the Investigating Officer exonerated him; nothing was recovered from the possession of the applicant; during the trial, the informant PW-1 Rakesh Kumar and PW-2 Sanjeev Pal Singh were examined; there are material contradictions in their testimonies; the applicant is in custody since 16.01.2020; two co-accused persons have been granted bail by the Co-ordinate Bench of this High Court.

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Mr. Maneesh Bisht, the learned counsel for the applicant–Vineet submitted that the applicant has been implicated in this matter; there are several contradictions in the testimony of PW-1 Rakesh and PW-2 Sanjeev Pal Singh; there was no independent witness in the alleged recovery of the pistol and the applicant is in custody since 02.10.2017.

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Mr. Pratiroop Pandey, the learned A.G.A. appearing for the State and Mr. Lalit Sharma, the learned

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counsel for the informant–Rakesh Kumar, opposed these bail applications and submitted that the present second bail applications are not maintainable, because, all these contentions were raised by the learned counsel for the applicants at the time of the arguments on the first bail applications.

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The Co-ordinate Bench of this High Court on 29.08.2020 passed the following order :

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“4. On behalf of the applicant Vineet, learned counsel would argue as follows:

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(i) According to the FIR, three persons fired at the deceased, but the postmortem report reveals only one fire arm injury.

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(ii) One of the eyewitness, Praveen Tomar has not supported the prosecution case at trial.

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(iii) Co-accused Arpit and Sanjay have already been granted bail.

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(iv) The inquest report reflects that the inquest cannot be conducted at night due to want of light. It makes the FIR doubtful because in the absence of light, it is not clear as to how the applicants were identified by the informant.

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(v) According to the FIR, the applicant Vineet was holding a pistol, whereas according to the prosecution case, a country made pistol was recovered from Vineet, although the informant in his statement at trial categorically states that he understands the difference between a pistol and country made pistol. It makes the case doubtful.

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On behalf of the applicant Pareen Dhama alias Dumpy Dhama, learned counsel adopts all the arguments advanced on behalf of applicant

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Vineet and learned counsel further argued as follows:

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(i) The applicant Pareen Dhama alias Dumpy Dhama has been falsely implicated. He was not at the place of occurrence though he was named, but the I.O. found him not involved in the case, therefore, he was not charge-sheeted. (ii) The statement of the witness-informant Rakesh and Sanjeev Pal Singh are not reliable about the source of light because they state that there was enough light but inquest report belies it. It is recorded that the inquest could not be conducted due to want of light.

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(iii) The prosecution case is not reliable because according to the FIR, three persons fired at the deceased, but it is not categorical stated as to whose fire hit the deceased because there was only one fire arm injury.

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(iv) During the investigation, the statements of informant Rakesh and witness Sanjeev Pal Singh were not consistent. They were contradictory. Witness Sanjeev Pal Singh has improved his statement during trial to falsely implicate the applicant Pareen Dhama alias Dumpy Dhama. 7. Reference has been made to various documents by the learned counsel for the applicants in support of their arguments. 8. On behalf of the informant, learned counsel would argue that the applicants are not entitled to be released on bail. It is argued that all the applicants are named in the first information report. PW1 Rakesh Kumar and PW2 Sanjeev Pal Singh have stated about their role. These witnesses have supported the prosecution case;

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Applicant Parveen Dhama alias Dumpy Dhama, was though named in the FIR but he was wrongly exonerated by the I.O. and PW2, Sanjeev Pal singh has categorically stated about it. Therefore, on an application, the applicant Pareen Dhama alias Dumpy Dhama has been summoned under Section 319 of the Code. This order has been confirmed even by the Hon’ble Supreme Court. A country made pistol was recovered at the instance of applicant Vineet and the forensic report confirms the involvement of the recovery with the offence. 9. Learned counsel for the informant would also invite this Court’s attention to the conduct of the applicants. It is argued that applicant Parveen Dhama alias Dumpy Dhama has been delaying the trial and the trial court on 18th and 19th February, 2020, in its order-sheet recorded all these facts. A witness was not being examined on behalf of the applicant Parveen Dhama alias Dumpy Dhama; the witnesses have been threatened by the applicants, of which, a Criminal Writ Petition No. 1741 of 2019 was filed by the applicant Rakesh Kumar in this Court and pursuant to orders passed in that writ petition, protection was provided to the witnesses.

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This is stage of bail. This bail application is pending for the last two years. Bail application of Vineet was filed on 28th March, 2018, In fact, the evidence of the witnesses have been recorded subsequent thereto. Most of the arguments touch upon the merits of the case. Bail is a concept which generally leans in the favour of an accused because he is presumed

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innocent until proven guilty but it is guided by various considerations, particularly, the societal interest. Between individual liberty and societal interest, a balance has to be maintained.

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This Court would try to refrain from recording any finding on any factual argument, but still to the extent of appreciating the arguments, material will be just looked into.

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It is true that according to the inquest report, due to dark in the night the inquest could not be conducted, but it is also true that according to the FIR, the applicants were identified by the informant. Both PW1 Rakesh Kumar and PW 2 Sanjeev Pal Singh have stated about the source of light. It is the two-wheeler light; light of the electric poles and according to PW2 Sanjeev Pal Singh light coming from some house. In the site plan, houses are shown near the place of incident (site plan is annexed to the counter affidavit dated 14.12.2018 filed by the State in BA1 No. 2292 of 2018).

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The State in its counter affidavit filed by Nasir Hussain on 9th April, 2018, at para 8 has discussed about the source of light and it is stated that light was enough to identify the assailants but not enough to record the inquest because it involves writing work.

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It is also true that according to the postmortem report, there was one fire arm entry wound, but there was a lacerated wound on the scalp and some abrasions etc. on the body. It is also true that according to the FIR, the deceased was shot by the applicants on his head. It is also not categorical statement as to whose bullet hit

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the deceased. A country made pistol was allegedly recovered from the applicant Vineet and forensic report connects it with the crime. Whether the FIR is ante time. It may a kind of defence available to the applicant at trial. The factual aspects may definitely fall for consideration during trial.

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The enmity between the parties, particularly, Beere has been shown on behalf of the applicant Beere. On behalf of the applicant Parveen Dhama the plea of alibi is being taken but fact remains that during trial on 18.02.2020 and 19.02.2020, the Court recorded that on behalf of the applicant Parveen Dhama alias Dumpy Dhama, a witness, was not being crossexamined. His counsel did not appear despite requests having been made by the Court. The witness on 18.02.2020 tells to the Court that his life is in danger. This Court orders that the witnesses be given protection, on a petition filed by the informant.

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Having considered the rival submissions, under the facts and circumstances of the case, this Court is of the view that the applicants do not deserve bail at this stage of trial. Their bail applications deserve to be rejected.

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All the bail applications are accordingly, rejected.”

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In the case of State of U.P. vs. Amarmani

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Tripathi, (2005) 8 SCC 21 , the Hon’ble Apex Court has held that it is well settled that the matters to be considered in an application for bail, are (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence, (ii) nature and gravity

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of charge, (iii) severity of the punishment in the event of conviction, (iv) danger of the accused absconding or fleeing, if released on bail, (v) character, behavior, means, position and standing of the accused, (vi) likelihood of the offence being repeated, (vii) reasonable apprehension of the witnesses being tampered with, and (viii) danger, of course, of justice being thwarted by grant of bail.

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A ratio decidendi of the judgment of Hon’ble Apex Court in Anil Kumar Yadav vs. State (N.C.T.) of Delhi and another, 2018(1) CCSC 117 is that in serious crimes, the mere fact that the accused is in custody for more than one year, may not be a relevant consideration to release the accused on bail.

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The role of the present applicants is not at par with the co-accused persons, who have been granted bail by the Co-ordinate Bench of this High Court. The coaccused persons who have been granted bail, were not named in the FIR. Each criminal case presents its own peculiar factual scenario and, therefore, certain grounds peculiar to a particular case may have to be taken into account by the Court.

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In Gian Chand and others vs. State of Haryana, (2013) 14 SCC 420 , the Hon’ble Supreme Court has held that one additional or different fact may make a world of difference between cases or between two accused in same case. Each case depends on its own facts and a close similarity between one case and another is not enough because a single significant detail may alter entire aspect.

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At the stage of considering the bail applications, the Court has to only opine as to whether there is prima facie case against the accused persons. The Court must not undertake meticulous examination of the evidence, collected by the Investigating Officer. Such assessment of evidence and premature comments are likely to deprive the accused persons of a fair trial. From the perusal of the evidence, collected during the investigation, it prima facie appears that the applicants were involved in this grievous offence.

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Mr. Lalit Sharma, the learned counsel for the informant, relied upon a judgment of the Hon’ble Supreme Court in “Satya Pal vs. State of Uttar Pradesh”, 1998 Supreme (All) 437 , whereby the Hon’ble Supreme Court has held that the second bail application cannot be allowed on those very facts that were available to the accused while the first bail application was moved and rejected.

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In State of Madhya Pradesh Vs. Kajad, (2001)7 SCC 673 , the Hon’ble Supreme Court has held that it is true that successive bail applications are permissible under the changed circumstances. But without the change in the circumstances, the second bail application would be deemed to be seeking review of the earlier judgment which is not permissible under criminal law.

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In State of Maharashtra Vs. Captain Buddhikota Subha Rao, AIR 1989 SC 2292 , the Hon’ble Supreme Court has observed, “…..Once that application was rejected there was no question of granting a similar prayer. That is virtually overruling the earlier decision without there being a change in the fact-situation. And when we speak of change, we mean a substantial one

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which has a direct impact on the earlier decision and not merely cosmetic changes which are of little or no consequence. ……”

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The applicants had opportunity to raise all their contentions on the previous occasion and they had actually raised the said contentions. Therefore, it is not open to the applicants to make successive bail applications even on the grounds already rejected by the Co-ordinate Bench of this High Court.

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On overall consideration of the applications and in the light of the fact that any change in the circumstances is not established, after rejection of the first bail applications on merit, I do not find any change in the circumstances to entertain present second bail applications. The second bail applications do not deserve to be entertained. Consequently, the present second bail applications are rejected.

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It is clarified that the observations made regarding the bail applications are limited to the decision, in the light of the facts, provided by the parties at this stage, as to whether the bail applications should be allowed or not and the said observations shall not effect the trial of the case.

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___________________ ALOK KUMAR VERMA, J.

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Dt: 08^th November, 2021 JKJ/Neha

Praveen Dhama Alias Dumpy Dhama v. State of Uttarkahand

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Praveen Dhama Alias Dumpy Dhama v. State of Uttarkahand

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