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Himachal Pradesh High Court · body

2020 DIGILAW 933 (HP)

Durga Dass v. State of Himachal Pradesh

2020-12-31

ANOOP CHITKARA

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JUDGMENT Anoop Chitkara, J. - The present petition is filed by the petitioner under Section 439 of the Code of Criminal Procedure, seeking regular bail in F.I.R. No. 231/17, 28.9.2017, registered at Police Station Balh, Distt. Mandi, H.P., under Sections 302, 392, 201, read with Section 34 of the Indian Penal Code. In this case, police report stands filed under Section 173 Cr.P.C. 2. I have heard learned counsel for the petitioner as also the learned Assistant Advocate General for the respondent/State. Status report also perused. Police file was also made available to the Court which was thoroughly seen and returned. 3. The gist of the prosecution case necessary for the purpose of deciding this bail application is as follows: (a) On receipt of information of a dead body of a lady lying near her house, police swung into action. Inspector Sanjeev Sood, SHO, Police Station Balh, started the investigation and reached the spot. (b) After preliminary investigation, Sh. Prem Singh gave his statement to Inspector Sanjeev Sood, SHO, Police Station Balh, which he recorded as statement under Section 154 Cr.P.C. on 28.9.2017 at 2.00 p.m., at Sakroha, which was the spot of the incident. (c) In the said statement Prem Singh stated that deceased Fulmu Devi was his elder sister and was residing separately at Sakroha. Her husband had died long time before. No issue was born to the couple. She used to reside alone in the house. (d) He further stated that on 28.9.2017, in the morning at about 9.30 a.m., his nephew Jalam Ram informed him that his sister had died. On this he reached Sakroha. (e) On reaching the house of his sister, he noticed that lot of people had assembled there. The dead body of his sister was lying at the southern portion outside the house, with both the arms of her sister tied with shawl, and blood oozing out from the mouth. (f)He further stated that his sister used to wear rings, made of gold, in her ears but those were not noticed by him in her ears. (g) He further stated that when he checked the residential room of his sister then he noticed that the lock holder of the trunk was broken and the lock was hanging from it. The luggage of the room was also shattered. (h) He further stated that his sister had hired one Krishna Devi as a care-taker. (g) He further stated that when he checked the residential room of his sister then he noticed that the lock holder of the trunk was broken and the lock was hanging from it. The luggage of the room was also shattered. (h) He further stated that his sister had hired one Krishna Devi as a care-taker. 4. On these allegations, the present FIR was registered. 5. During investigation, police recorded the statement of Krishna Devi under Section 161 Cr.P.C. She stated as follows: (a) The husband of Fulmu Devi deceased had died 20 years before and the couple was issue less. (b) Fulmu Devi deceased used to reside alone in her house and she was slightly lame because one of her legs had been operated. (c) She further stated that Fulmu devi had around one bigha land (750 Sq. Mts.) around her house. Apart from that there is also a single storied cemented house. (d) She further stated that she used to take care of Fulmu Devi deceased for the last two and a half years. She would return back to her home after cooking the evening meals. (d) On 27.9.2017, as usual, she went to her house, cooked food for her, and thereafter returned at 7.30 p.m. (e) On the next day, i.e. 28.9.2017, in the morning at about 8.30 a.m., she came to know through her daughterin-law Babli that Fulmu Devi is dead. (f) She further stated that some unknown persons have caused her death, after committing robbery at her house. 6. The Investigating Officer got the post mortem examination of the deceased conducted through Government Hospital Mandi at Ner Chowk. In the post mortem report there is no mention of time between the injury and the death and the probable time between death and post mortem is 12 24 hours. The post mortem took place on 28.9.2017 at 5.00 p.m., that is the same day. As such Fulmu Devi is likely to have died any time from the evening of 27.9.2017 till the morning of 28.9.2017. 7. After investigation, police arrested one Durga Dass on 4.10.2017. Police recovered one mobile phone from Durga Dass, which belonged to the deceased. It had been used by Durga Dass on 29th and 30th September, 2017, by inserting a SIM card in it. 7. After investigation, police arrested one Durga Dass on 4.10.2017. Police recovered one mobile phone from Durga Dass, which belonged to the deceased. It had been used by Durga Dass on 29th and 30th September, 2017, by inserting a SIM card in it. Further his statement under Section 27 of the Indian Evidence Act was recorded which led to the recovery of utensils sold to one Gagan Kumar. 8. Set of evidence collected by the prosecution is that Fulmu Devi deceased used to sell illicit liquor. One Nar Bahadur had seen both the accused visit her house on 26th and 27th September, 2017. So case of the prosecution is based also on the theory of 'last seen'. 9. Statement of said Nar Bahadur under Section 161 Cr.P.C. was also recorded by the Investigating Officer on 11th October, 2017, 10. Without commenting on the merits of the 'last seen' evidence, even as per the case of the prosecution, Krishan Devi had left the house of the deceased at 7.30 p.m. and till that time she was alive. She was also with the deceased. The evidence against Durga Dass is multiple, which includes usage of mobile phone, discovery of stolen articles. 11. The first ground taken by the petitioner is that the co-accused stands released on bail by this Court. 12. The answer to the contention lies in closing sentences of Paragraph-12 of the bail order of co-accused Tek Chand, passed in Cr.MP(M) No.822 of 2019. While granting bail, this Court observed that the only evidence against accused Tek Chand was of 'last seen'. A perusal of the facts would also show that evidence against Tek Chand was of weak nature, that is why, this Court had granted bail to him. 13. Mr. Vikram Thakur, learned counsel for the petitioner, has primarily argued on the ground that the petitioner has a child aged three years who needs love and affection of his father being in tender age. To counter this, learned Assistant Advocate General, submits that if bail is granted to the petitioner in a heinous crime like 302 IPC, then all similarly placed persons will also apply for bail and it would create chaos in the society. 14. In my considered opinion, this ground alone cannot be a valid ground to seek bail. 15. Mr. Vikram Thakur, learned counsel for the petitioner, wants this Court to refer the statements of witnesses. 14. In my considered opinion, this ground alone cannot be a valid ground to seek bail. 15. Mr. Vikram Thakur, learned counsel for the petitioner, wants this Court to refer the statements of witnesses. The contention of learned counsel is that the witnesses have turned hostile and whatever evidence have come is not sufficient. 16. Mr. Ram Lal Thakur, learned Assistant Advocate General, submits that the bail petition does not contain any such evidence and he would not be in a position to respond to the same unless such evidence is annexed in the bail petition and he is given a copy of the same in advance. I find this contention valid and let the petitioner place on record all such documents as he likes. 17. Without going into the merits of the case, the present petition is dismissed at this stage, reserving liberty to the petitioner to file afresh by annexing all the documents which the learned counsel wants this Court to refer. Petition dismissed.