Himachal Pradesh High Court

_________________________________________________________________ vs State Of H.P on 20 October, 2023

Bench: Jyotsna Rewal Dua

IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA

Cr.MP(M) No.2481 of 2023 Reserved on: 13.10.2023

Decided on: 20th October, 2023

_________________________________________________________________ Sanma ....Petitioner

Versus State of H.P. ...Respondent _________________________________________________________________ Coram

Ms. Justice Jyotsna Rewal Dua,

1 Whether approved for reporting?

_________________________________________________________________ For the petitioner:

r Mr. Dinesh K. Thakur, Advocate.

For the respondent: Mr. Pranay Pratap Singh, Additional Advocate Genera with Mr. Sidharath Jalta, Deputy Advocate General.

ASI Karnail Singh, Police Station Dehra, District Kangra, H.P. present in person alongwith record.

Jyotsna Rewal Dua, Judge

The petitioner was arrested on 04.07.2020 in FIR

No. 81 of 2020, dated 03.07.2020, registered under Section

302 of Indian Penal Code, at Police Station Dehra, District

Kangra, H.P. She has completed about three years and three

Whether reporters of Local Papers may be allowed to see the judgment? yes

months in custody. Her prayer is for enlargement on regular

bail.

2. In the aforesaid FIR, the petiotner is facing

accusation of murdering her husband Sh. Surjeet Kumar.

According to the prosecution, on 03.07.2020, an information

was received at police Station Dehra from Police Post

Dadasiba, District Kangra that family members of the

deceased Surjeet Kumar alongwith some villagers were taking

the dead body of Surjeet Kumar in protest procession. On

receipt of the information, police personnel reached Dadasiba

where about 100 people had gathered alongside the dead

body of Surjeet Kumar. Sh. Parmanand, father of deceased

Surjeet Kumar, got recorded his statement under Section 154

of Code of Criminal Procedure (Cr.PC in short) that:-

2(i) He was father of five children including three

daughters and two sons. His one son and one daughter had

already died. His remaining children were married and

resided separately. He alongwith his wife Krishna Devi had

been living with their younger son Satish Kumar.

2(ii) His elder son Surjeet Kumar got married in the

year 2010 with Sanma Rani (petitioner). The couple enjoyed

good relations for about six years. Later on, petitioner

developed illicit relations with one Rajat Kumar alias Chiku.

Surjeet Kumar, complainant and their other family members

tried to persuade the petitioner to leave the company of

aforesaid Rajat Kumar, but in vain. The petitioner had also

filed a case claiming maintenance from her husband Surjeet

Kumar. All this had put pressure on Surjeet Kumar.

Petitioner and Surjeet Kumar used to have frequent quarrels.

Petitioner used to abuse and beat Surjeet Kumar.

2(iii) On 01.07.2020, at about 6:30 p.m., Surjeet

Kumar returned home after doing labour work. A little later,

Surjeet Kumar and petitioner had a quarrel. Petitioner

threatened to do away with the life of her husband Surjeet

Kumar. The complainant's younger son Satish Kumar tried

to intervene between them, but the petitioner threatened him

by saying that she would tear her clothes and will implicate

him. Upon this, Satish Kumar informed Pradhan of the

village. The quarrel eventually stopped.

2(iv) Next day in the morning, petitioner informed the

complainant that Surjeet Kumar was still sleeping and had

not woken up, therefore, the complainant should go and

check. The complainant alongwith his wife Krishna Devi went

to the first floor of the house. The complainant asked the

petitioner to take Surjeet Kumar to a doctor but then

discovered that Surjeet Kumar was not breathing.

The complainant suspected that his son Surjeet

Kumar had died because of beatings given to him by the

petitioner. On the basis of such statement, FIR was

registered on 03.07.2020. The petitioner was arrested on

04.07.2020 at around 6:05 p.m.

3. The respondent carried out investigation in the

matter. Statements of several persons were recorded under

Section 161 Cr.PC. Scientific and medical evidence/reports

were obtained. Challan was eventually presented in the Court

of competent jurisdiction on 05.10.2020. In terms of the

status report, trial is underway. Statements of 22 prosecution

witnesses have been recorded and 8 prosecution witnesses

still remain to be examined.

4. Learned counsel for the petitioner submitted that

the petitioner is innocent. She had nothing to do with the

case registered against her. She was falsely implicated in the

FIR. Learned counsel highlighted that :-

4(i) Investigation had already been conducted by the

police on its visit to the site on 02.07.2020. At that time, no

complaint or doubt was made/expressed by the family

members of the deceased Surjeet Kumar against the

petitioner. It was only on 03.07.2020 that FIR was registered

against her on the cultivated complaint of petitioner's father-

in-law.

4(ii) Several inconsistencies exist in the statements of

witnesses examined by the prosecution. Sh. Parmanand

(father of deceased Surjeet Kumar) while deposing as PW-1

admitted that on the date of commission of alleged offence, he

had reached the house at around 9:30 p.m. and from that

time till 6:30 a.m. next day (02.07.2020), nothing untoward

happened in his presence. He had narrated the story to the

police about the incident as told to him by his wife Smt.

Krishna Devi. He had made allegations against the petitioner

only on the basis of suspicion. Smt. Krishna Devi, the so

called witness to the quarrel between the couple was given up

by the prosecution.

4(iii) The children of the couple were examined as PW-3

(minor daughter) and PW-4 (minor son). As per PW-3, her

father (Surjeet Kumar) had returned home in the evening and

at that time she was watching television with PW-4 in her

uncle's room. She further stated that her father was alive at

that time, whereas PW-4 in his statement deposed that

Sh. Surjeet Kumar had already died at 6:30 P.M. on

01.07.2020. This was in contradiction to the statements of

PW-1 and PW-2, who had given the time of quarrel between

the couple as 8:45 P.M. Name of Rajat Kumar was introduced

by the children in their statements, whereas, neither the

father of the deceased nor his brother or anyone else had

testified about the presence of Rajat Kumar in the house on

the fateful day. The statements of the children to the effect

that no one from the family wants the petitioner to come out

of the jail, was highlighted to suggest tutoring of the children.

4(iv) The deposition of PW-9, Professor of Forensic

Medicine, was highlighted to put forth that cause of death

was "asphyxia due to respiratory depression". Further

reference to the deposition of PW-9 and PW-6-specialist was

made to submit that possibility of death due to respiratory

depression caused by aspiration was not ruled out and that

deceased had taken large quantity of liquor.

In view of above, learned counsel for the petitioner

submitted that: - There is no cogent evidence about the

involvement of the petitioner; The petitioner is behind the

bars for more than three years; The trial has been delayed;

The aforesaid facts and circumstances of the case coupled

with petitioner's right of liberty vis-a-vis delayed trial, entitles

her to bail.

Opposing the bail plea, learned Additional

Advocate General submitted that the petitioner is involved in

a heinous and serious crime of murdering her own husband.

The petitioner was last seen in the house of the deceased

Surjeet Kumar on 01.07.2020. She had a fight with Surjeet

Kumar. The fight was witnessed by the complainant

Parmanand, his wife Krishna Devi, their son Satish Kumar

and other family members. After the fight, petitioner and her

husband remained in their house. The very next morning,

Surjeet Kumar was found dead by his family members.

Leaned Additional Advocate General referred to the

postmortem report of deceased Surjeet Kumar and stated that

there were multiple injuries on his person, therefore, theory of

last scene was applicable in the instant case. The injuries

were as under: -

"i). A minor laceration size .5x.7 cm present at left temporal

.

region of scalp, associated with underlying hematoma

and blood stains at left ear.

(ii). A frenulum tear of size 2x 1cm, muscle deep. associated

with underlying haematoma, present at mid part of lower lip.

(iii). An abraded contusion of size 2.5 x 1.5 cm was present over the left side of neck, 3.2cm below outer aspect of

left angle of mouth.

(iv). A liner abrasion of size 5x0.2cm was present over the left side of lower aspect of neck, directed backward and

terminates at nape of neck.

(v). A reddish brown abrasion of size 3.6x1.6cm was present over the left shoulder region, 2.7cm medial to the right acromion process.

(vi). A bluish colored bruise of size 2.2x1.1cm was present

over the lower part of left chest, 1.1cm outer to xiphisternum.

(vii). Multiple reddish brown abrasions of sizes ranging from 0.1x0.1 cm to 0.3x0.1cm over the back of both hands,

more on right hand.

(viii). A bluish colored bruise of size 2.6x1.2cm was present

over the outer aspect of left thigh 6.7cm below anterior superior iliac spine,

(ix). Multiple bluish colored bruises of sizes ranging from 1.2x1.1cm to 2.2x1.6cm in an area of 19x3.2cm was present over the right knee and front part of right lower leg."

5. Heard learned counsel for the parties and

considered the record. It is a fact that the petitioner is facing

trial for allegedly murdering her husband on 01-02.07.2020.

The FIR was registered on the complaint of deceased's father

Sh. Parmanand. Prima-facie, it appears that there are

contradictions in the version of the complainant as given

under Section 154 Cr.PC and the one which he deposed as

PW-1. As per his own statement as PW-1, he had not

witnessed the alleged fight or quarrel, which statedly took

place between the deceased and his wife (petitioner). The

other two witnesses of the fight between the couple were given

up by the prosecution. The statements of the children when

read in totality, prima-facie, it seems are having

contradictions on several aspects especially, when read with

the depositions of other witnesses. No doubt, these

statements and veracity of facts are to be considered by the

learned Trial Court. Presently, these have been referred to

only for adjudication of this bail petition. PW-6, the expert

doctor, had, inter-alia, given the following opinion: -

"........As per my opinion the cause of death in this case is suggestive of respiratory depression which could be possible in partial choking associated with the neck compression correspond to injury no.3. Other mentioned

- 10 -

injuries in said PMR suggest physical assault, but not sufficient to cause of death in ordinary course of nature. The deceased had consumed alcohol at the time of incident. Opinion Ex.PW-3/PW-6 was issued by me and

.

Dr. Tushar Saini. Report bears my signatures under red

circle "A". The report also bears the signatures of Dr. Tushar Saini."

In view of the above and the fact that the

petitioner is behind the bars ever since 04.07.2020; The trial

in the case is considerably delayed; It is nowhere near

conclusion even today, petitioner, who has already spent

more than three years in custody, in my considered view has

made out a case for her enlargement on regular bail at this

stage. There is no criminal history of the petitioner. She is a

local resident and mother of two minor children. Prosecution

has already adduced twenty-two witnesses in the trial.

Statements of material witnesses stand recorded. There is no

likelihood of petitioner's tampering with evidence or winning

over remaining witnesses.

In view of all the aforesaid reasons and without

expressing any opinion on the merits of the case, the present

petition is allowed. Petitioner is ordered to be released on bail

in the aforesaid FIR on her furnishing personal bond in the

- 11 -

sum of Rs.1,00,000/- (Rupees One Lakh only) with one local

surety in the like amount to the satisfaction of the learned

Trial Court having jurisdiction over the Police Station

concerned, subject to the following conditions: -

i). The petitioner shall join and cooperate the

investigation of the case as and when called for by the Investigating Officer in accordance with law.

(ii). The petitioner shall not tamper with the evidence or hamper the investigation in any manner whatsoever.

(iii). The petitioner will not leave India without prior permission of the Court.

(iv). The petitioner shall not make any inducement,

threat or promise, directly or indirectly, to the

Investigating Officer or any person acquainted with the facts of the case to dissuade him/her from disclosing such facts to the Court or any Police Officer.

(v). Petitioner shall attend the trial on every hearing, unless exempted in accordance with law.

(vi). Petitioner shall inform the Station House Officer of the concerned police station about her place of

residence during bail and trial. Any change in the same shall also be communicated within two weeks thereafter. Petitioner shall furnish details of his Aadhar Card, Telephone Number, E-mail, PAN

Card, Bank Account Number, if any.

In case of violation of any of the terms &

conditions of the bail, respondent-State shall be at liberty to

move appropriate application for cancellation of the bail. It is

made clear that observations made above are only for the

- 12 -

purpose of adjudication of instant bail petition and shall not

be construed as an opinion on the merits of the matter. Any

observation hereinabove shall not be taken as an expression

on merits of the case and learned Trial Court shall decide the

matter uninfluenced by any of observations made

hereinabove.

With the aforesaid observations, the present