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2019 DIGILAW 240 (HP)

Sushma Rani v. State of Himachal Pradesh

2019-03-08

VIVEK SINGH THAKUR

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JUDGMENT : VIVEK SINGH THAKUR, J. 1. Petitioner has preferred present petition under Section 439 of the Code of Criminal Procedure (hereinafter referred to as 'Cr.P.C.'), for grant of regular bail in case FIR No. 54 of 2016, dated 4th July, 2016, registered under Sections 302, 120-B and Section 34 of the Indian Penal Code (hereinafter referred to as 'IPC'), registered at Police Station Kala Amb, District Sirmour, H.P. 2. The respondent/State has filed status reports and produced the record for perusal. Prosecution case in brief is that deceased Sohan Singh (husband of present petitioner) had not returned back from his shop on 3rd July, 2016 and his dead body was noticed by complainant Gafur Mohammad, lying along with motor cycle below the culvert, on 4th July, 2016 at 8.00 a.m., near Gulria bridge, when he had looked below the culvert after noticing the blood, pieces of glass, battery and mobile phone on the road. Where after, he informed one Satish Kumar, who in turn informed the villagers and on arrival of the police on the spot, his statement under Section 154 Cr.P.C. was recorded and after registration of F.I.R., investigation was carried out. During post-mortem, it revealed that deceased died as a result of shock due to anti mortem injury to brain tissue with a moderately heavy wooden leading to blunt trauma homicidal in nature. On verifying the details of mobile phones of relatives and friends of deceased, it revealed that during the night of incident at 12.31 a.m., petitioner had conversation from her mobile phone bearing No.8894449439, with a Puran, having mobile number of Haryana area, bearing No.8930892125. On further enquiry of CDR and IMEI of mobile phones, it was found that mobile phone used for Sim No.8930892125, was also being used for any Sim No.9812582353, location of which was found on the spot of incident during the night of commission of offence and it was also revealed that Sim No.9812582353 was in the name of father of petitioner Sushma Rani, who had given it to his son Rinku, who had given it to petitioner Sushma Rani, who lastly had given it to co-accused Rajesh Kumar son of his step maternal aunt and at the time of incident, he was found using the said sim. On tracing, on 20th July, 2016, Rajesh Kumar was found in a village in district Yamunanagar and on enquiry he had disclosed that he and Sushma were having affairs, but due to marriage of petitioner Sushma in April, 2016 with deceased Sohan Singh, they were finding it difficult to meet each other. Therefore, they had conspired to eliminate deceased Sohan Singh and as per plan, on 3rd July, 2016, co-accused Rajesh had come to Barma Papri, the place of deceased Sohan Singh and had concealed a piece of iron pipe behind the parapet and started waiting for Sohan Singh near his shop on the road, wherefrom deceased Sohan Singh had to cross to go home after closing his shop. On arrival of Sohan Singh at that place, co-accused Rajesh met him and they started moving on their motor cycle, having talks with each other. On reaching Gulria bridge culvert, Rajesh asked deceased Sohan Singh to stop on the pretext of urinating. At that time Sohan Singh was carrying a bundle of rubber pipe on his neck. Co-accused Rajesh took out the iron pipe and hit the head of Sohan Singh with it with force, whereupon Sohan Singh fell down on the road. Where after, co-accused had thrown the pipe into the Naala and dragged Sohan Singh and thrown his motor cycle below the culvert. Thereafter, co-accused Rajesh Kumar came down below the culvert and found that Sohan Singh had expired within two- three minutes and then he went back to Yamunagar on his motor cycle. As per prosecution case, during investigation, petitioner Sushma had corroborated the version of co accused Rajesh Kumar. 3. It is also mentioned in the status report that on verification of antecedents of co-accused Rajesh Kumar, it has been found that there were five cases registered against him and in case No.297/06 under Sections 279, 337 of IPC, case No.331/06 under Sections 457, 511of IPC and case No.31/07 under Section 364A, 376, 302, 201 of IPC, he had been acquitted and in case No.293/06 under Section 457, 380 of IPC, trial is pending, whereas in case No.18/07 under Sections 376, 302, 201 of IPC, registered in Police Station Paonta Sahib, District Sirmaur, H.P., he was convicted and sentenced with life and was serving sentence in Modal Central Jail, Nahan, District Sirmaur at the time of incident. On enquiry from the Superintendent of Jail, it was revealed that he was released on parole sanctioned from 12th November, 2015 to 21st November, 2015 but had not returned to jail on expiry of the said period and was absentee on parole. During this period, co-accused and petitioner have conspired and committed the offence. 4. Learned counsel for the petitioner has submitted that even if, prosecutions case is admitted to be proved in all respect, there is no overt act on the part of the petitioner for commission of offence and further that petitioner is a woman of young age of 26 years and keeping in view the principles incorporated under Section 437 Cr.P.C., she is entitled to be treated differently and deserves to be enlarged on bail, particularly keeping in view the fact that she is behind the bar since 20th July, 2016 and now, majority of witnesses have been examined. Learned counsel has also relied upon the judgments passed by the coordinate Bench, in case Nirmala Devi Versus State of H.P. reported in, (2016) LatestHLJ 382 (HP) and Cr.MP(M) No.1870 of 2015 titled as Rita Devi Versus State of H.P., wherein accused in case under Section 302 of IPC, were released on bail keeping in view their womanhood. It is further submitted that the petitioner had applied for bail before the trial Court, which was rejected by the Additional Sessions Judge, Sirmaur, District at Nahan, vide order dated 21st January, 2017, considering the stage of case/investigation at that time and now, in the changed circumstances, petitioner is entitled for bail. 5. Learned Additional Advocate General has opposed the bail for the reasons assigned in order passed by learned Additional Sessions Judge, Sirmaur, and also on the ground that the offence involved in present case is heinous crime and release of petitioner will have adverse impact on the society at large and thus, keeping in view the nature and gravity of the offence, he has prayed for dismissal of the petition. 6. There is no quarrel with the ratio of law discussed in Nirmala Devi and Rita Devi's cases (supra), but such principles are to be applied by considering the facts and circumstances of each and every case which normally are not identical in two different criminal cases. 6. There is no quarrel with the ratio of law discussed in Nirmala Devi and Rita Devi's cases (supra), but such principles are to be applied by considering the facts and circumstances of each and every case which normally are not identical in two different criminal cases. Learned Additional Sessions Judge has rightly observed that Section 437 Cr.P.C. does not directs that in each and every case of woman, accused in a case for commission of offence punishable with death or imprisonment with life, is entitled for bail in any facts and circumstances of the case. No doubt, Section 437 Cr.P.C. deals with a situation when accused is produced before the Magistrate and under Section 439 Cr.P.C. devolves special powers on the High Court and or/Court of Session regarding the bail. But it is also settled position that provisions contained in Sections 437 and 438 Cr.P.C., can also be taken into consideration at the time of considering the bail under Section 439 Cr.P.C. The observations of learned Additional Sessions Judge, in his order dated 21st January, 2017, that it is discretion of the Court to decide the bail application of a woman after considering the facts and circumstances of the case. In fact, Section 437 Cr.P.C. refrains the Courts other than the High Court or Court of Session, from releasing a person accused of, or suspect of the commission of any non bailable offence, who, is arrested or detained without warrant, or appears, or is brought before such Court and there appears reasonable ground for believing that he is guilty of an offence punishable with death, or imprisonment, for life. However, an exception has been carved out enabling such Court to release such a person on bail, in case such person is under the age of 16 years, or is a woman, or is sick, or infirm, with further provision that no such person shall be released without giving an opportunity of hearing to the Public Prosecutor, which means that the persons under the age of 16 years, or woman, or sick, or infirm, are not to be released in all cases, but after considering the facts and circumstances brought in the notice of the Court by the Public Prosecutor. Therefore, solely on the ground that the petitioner is a woman, she is not entitled for bail. 7. Therefore, solely on the ground that the petitioner is a woman, she is not entitled for bail. 7. It is informed that recording of evidence in the trial is at final stage and out of 39 witnesses, only 11 witnesses are to be examined and out of those, 8 witnesses have been summoned for 23rd and 24th May, 2019. Further, that all remaining witnesses are official witnesses, who have to prove the link evidence on record. On 21st January, 2017, bail application of the petitioner was rejected on the ground that she may influence the witnesses as most of the witnesses were from her maternal side and the mobile sim, proving her involvement in the case, was also given to her by her brother and therefore, keeping in view the stage of the investigation/case, it was found that there were no special circumstances to release the petitioner on bail at that time, as important witnesses, who were to lay foundation of the prosecution case, had not been examined at that time. Now, it is a matter of fact as informed that only official witnesses are to be examined and petitioner may not be in a position to influence such witnesses. 8. It is true that the marriage of petitioner and deceased Sohan Singh was solemnized in April, 2016 and he was murdered in July, 2016 and relation of husband and wife are based on faith upon each other and after parents, it is only the spouse with whom one feels utmost security and breach of such faith is definitely a heinous crime that too, to the extent of causing murder of spouse. But at the same time, it is also fact that this allegation is subject to scrutiny of prosecution evidence on record and under trial detention should not be used as conviction before the trial. Keeping in view entire facts and circumstances and evidence connecting the petitioner with commission of offence, which are yet to be established by the prosecution, coupled with the fact that she is a woman of young age, she can be treated differently from the co-accused Rajesh Kumar. 9. Keeping in view entire facts and circumstances and evidence connecting the petitioner with commission of offence, which are yet to be established by the prosecution, coupled with the fact that she is a woman of young age, she can be treated differently from the co-accused Rajesh Kumar. 9. In view of above discussion, I feel at this stage that the petitioner is entitled for bail and accordingly she is released on bail in case FIR No. 54 of 2016, dated 4th July, 2016, registered under Sections 302, 120-B and Section 34 of the Indian Penal Code, registered at Police Station Kala Amb, District Sirmour, H.P., if not required in any other case, subject to her furnishing personal bond in the sum of Rs. 50,000/- with one surety in the like amount, to the satisfaction of the trial Court. 10. The bail shall be subject to further following conditions:- (i) That the petitioner shall make herself available to the police or any other investigating agency or Court in the present case as and when required; (ii) That the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses; (iii) That she shall not obstruct the smooth progress of the trial; (iv) That the petitioner shall not commit the offence similar to the offence to which he is accused or suspected; (v) That the petitioner shall not misuse his liberty in any manner; (vi) That the petitioner shall not jump over the bail and also shall not leave the territory of India without information and she shall inform about his mobile/contact number and shall keep on informing about change of address/mobile/contact number, if any; 11. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. 12. In case the petitioner violates any condition imposed upon her, her bail shall be liable to be cancelled. It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice. 12. In case the petitioner violates any condition imposed upon her, her bail shall be liable to be cancelled. In such eventuality, prosecution may approach the competent Court of law for cancellation of bail in accordance with law. 13. Learned trial Court is directed to ensure compliance of the directions issued by the High Court vide communication No. HHC/VIG/Misc. Instructions /93-IV.7139 dated 18th March, 2013, as applicable. 14. Observations made in this petition hereinbefore shall not affect the merits of the case in any manner and will strictly be confined for the disposal of this bail application. 15. Petition stands disposed of in aforesaid terms.