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Himachal Pradesh High Court · body

2019 DIGILAW 698 (HP)

Veena Devi v. State of Himachal Pradesh

2019-06-12

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. Since all the bail petitions arise out of the same FIR, they are being taken up together for final disposal by this Court. 2. Bail petitioners, named hereinabove, have approached this Court in the instant proceedings filed under Section 438 of the Code of Criminal Procedure, praying therein for grant of anticipatory bail in connection with FIR No. 82 of 2019, dated 6.5.2019, under Sections 306, 304B read with Section 34 of IPC, registered at police Station, Hamirpur, District Hamirpur, Himachal Pradesh. 3. Sequel to orders dated 8th/22nd May, 2019, ASI Bodh Raj, has come present in Court alongwith the record. Mr. Ashwani Sharma, learned Additional Advocate General, has also placed on record status report prepared on the basis of the investigation carried out by the Investigating Agency. Record perused and returned. 4. Close scrutiny of the record/status report, reveals that on 3.5.2019 police received telephonic information from Dr. RKGMC, Hamirpur that one lady has been brought dead to the hospital. After having received the aforesaid information, police inquired the matter and found that lady namely, Ms. Shivani committed suicide by hanging herself with a fan. Mother-in-law of the deceased namely, Smt. Veena Devi, who is also accused and sister-in-law stated to the police that deceased Shivani hanged herself with the fan, but they considering her to be alive, cut the duppta by using sickle and thereafter took her to the hospital. On 4.5.2019, police recorded the statements of father-in-law, brother-in-law and parents of deceased Shivani, who did not suspect any foul play. Subsequently, on 6th May, 2019 mother of the deceased namely, Meera Devi, lodged a complaint with the police station, Hamirpur, alleging therein that marriage of her daughter was solemnized on 13th December, 2018 as per Hindu Rites, but after few days of marriage, in laws of her daughter started torturing her for bringing less dowry. She also alleged that on 2nd May, 2019 she had received call from her daughter, who had told her that even today her Mother-in-law is torturing her on account of bringing less dowry. As per the mother of deceased Shivani on 3rd May, 2019 they were informed telephonically that Shivani had expired after having suffered heart attack. After completion of the investigation, police lodged the FIR against the bail petitioners. 5. Mr. As per the mother of deceased Shivani on 3rd May, 2019 they were informed telephonically that Shivani had expired after having suffered heart attack. After completion of the investigation, police lodged the FIR against the bail petitioners. 5. Mr. Ashwani Sharma, learned Additional Advocate General, while fairly stating that investigation in the case is almost complete save and except result of chemical analysis which is yet to be received, contended that keeping in view the gravity of offences alleged to have been committed by the bail petitioners, they do not deserve any leniency, rather needs to be dealt with severely. Learned Additional Advocate General while referring to the record, especially statement of the mother of deceased Shivani, strenuously argued that it stands duly established on record that deceased was forced to commit suicide by her Mother-in-law ( Smt. Veena Devi), who used to mentally torture her constantly for bringing less dowry. He further contended that as per CDR deceased before committing suicide had made a telephonic call to her mother Smt. Meera Devi, whereby she had again reiterated with regard to ill-treatment being meted to her by her Mother-in-law on account of dowry. Learned Additional Advocate General while seriously opposing the bail petition of Veena Devi, fairly contended that nothing concrete has emerged in the investigation against the another bail petitioner namely Ramesh Chand, who happened to be fatherin law of deceased. He also admitted that at the time of alleged incident husband of the deceased namely, Manoj Kumar was also not present on the spot of occurrence. 6. Mr. Imran Khan, learned counsel representing the bail petitioners, while referring to the status report submitted in the Court, contended that as per own story of the prosecution statements of the parents of deceased alongwith bail petitioners were recorded immediately after alleged incident, but at that point of time, no such allegation with regard to demand of dowry was levelled, rather they stated that they do not suspect any foul play. He further contended that there is no concrete evidence save and except statement of complainant Smt. Meera Devi with regard to demand of dowry, if any, compelling the deceased to commit suicide and as such, no much reliance can be placed upon the same at this stage, especially when there is no corroborative evidence adduced on record by the prosecution. Lastly, Mr. Lastly, Mr. Khan, contended that since investigation in the case is complete and nothing is required to be recovered from the bail petitioners, no fruitful purpose would be served in case they are sent for custodial interrogation. 7. Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on 4th May, 2019, police after inspecting the site of occurrence not only recorded the statements of the in laws of deceased Shivani, but also the parents of deceased, but at that time she stated nothing adverse against the bail petitioners, rather record reveals that parents of deceased did not suspect any foul play. Subsequently, on 6th May, 2019, mother of the deceased in a complaint alleged that her deceased daughter was being harassed by her Mother-in-law, but interestingly, at this stage there is no evidence save and except statement of the mother to corroborate the aforesaid statement of complainant Smt. Meera Devi. No doubt, record reveals that as per CDR deceased Shivani had telephonically talk with her mother on 2nd May, 2019 when she allegedly informed her mother with regard to ill-treatment being meted to her, but that cannot be a sole ground to conclude at this stage that deceased Shivani committed suicide after being ill-treated and harassed by her Mother-in-law for bringing less dowry. It is not understood that why police failed to associate independent witnesses from the locality to substantiate the allegations of the complainant with regard to maltreatment being meted to her daughter after marriage for bringing less dowry. 8. Though, aforesaid aspects of the matter are to be considered and decided by the learned trial Court on the basis of totality of evidence to be collected on record by the Investigating Agency during the trial, but this Court having perused the record, which has been otherwise taken note hereinabove, definitely sees no reason to allow the bail petitioners to incarcerate in jail for an indefinite period, especially when investigation is complete and nothing is required to be recovered from them. 9. Hon’ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. 9. Hon’ble Apex Court as well as this Court in catena of cases have held that freedom of an individual cannot be curtailed for indefinite period during the pendency of the trial because one is deemed to be innocent until his/her guilt, is not proved in accordance with law. In the case at hand, guilt, if any, of the bail petitioners is yet to be proved in accordance with law by leading cogent and convincing evidence. Apprehension expressed by learned Additional Advocate General that in the event of petitioners’ being enlarged on bail, they may flee from justice, can be best met by putting bail petitioners to stringent conditions, as has been fairly stated by learned counsel representing the bail petitioners. 10. Recently, the Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for grant of bail, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under: 2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society. 3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case. 4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re Inhuman Conditions in 1382 Prisons 11. The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation (2012)1 Supreme Court Cases 49; held as under: “The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India, it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.” 12. Needless to say object of the bail is to secure the attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime. 13. The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496 , has laid down the following principles to be kept in mind, while deciding petition for bail: (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail. 14. Consequently, in view of the above, order dated 8.5.2019, passed by this Court, is made absolute, subject to their furnishing personal bond in the sum of Rs. 14. Consequently, in view of the above, order dated 8.5.2019, passed by this Court, is made absolute, subject to their furnishing personal bond in the sum of Rs. two lac with two local sureties in the like amount each to the satisfaction of the Investigating Officer, with following conditions: a. they shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application; b. they shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever; c. they shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or the Police Officer; and d. they shall not leave the territory of India without the prior permission of the Court. 15. It is clarified that if the petitioners misuse their liberty or violates any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail. 16. Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of these application alone. The bail petitions stand disposed of accordingly.