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2021 DIGILAW 863 (ALL)

Anita Sharma v. State of U. P.

2021-08-12

ARVIND KUMAR MISHRA I

body2021
JUDGMENT : Learned counsel for the applicants does not want to press this application in respect of applicant no.2-Devesh Dixit because he is minor aged about six years. Therefore, his anticipatory bail application may be dismissed as not pressed. 2. Accordingly, this Criminal Miscellaneous Anticipatory Bail Application in respect of applicant no.2-Devesh Dixit is dismissed as not pressed. 3. Heard Sri. Akhilesh Chandra Shukla, learned counsel for the applicant no.1-Smt. Anita Sharma, Sri Amit Daga and Sri Namman Raj Vanshi, learned counsels for the informant, learned A.G.A. for the State and perused the record. 4. This anticipatory bail application has been filed on behalf of the applicant no.1 -Smt. Anita Sharma, seeking anticipatory bail in Case Crime No.30 of 2021, under Sections -147, 148, 302, 504, 506, 394 I.P.C., Police Station -Paratapur, District Meerut, during the pendency of trial. 5. At the outset, objection was raised by Sri Amit Daga, learned counsel for the informant that the present case is barred by Section – 438 (6) Cr.P.C. as the offence inter-alia, is under Section – 302 I.P.C., therefore, it is not cognizable by this Court. 6. At this stage, learned counsel for the applicant has submitted that he has filed supplementary affidavit but the same is not on record, however, office copy of supplementary affidavit dated 29.06.2021 supplied in Court is taken on record. Learned A.G.A. assented to the receipt of the supplementary affidavit given by the counsel for the applicant. 7. Learned counsel for the applicant has placed reliance on the observation of the division Bench of this Court in Criminal Misc. Writ petition No. 3194 of 2021, copy whereof is at Page Nos. 8 and 9 in the supplementary affidavit, wherein the prayer for quashment of the first information report was refused on 12.05.2021. However, certain observation was made in the last paragraph of the aforesaid order that the deceased died out of 'septicemia', therefore, prima facie provisions of Section 302 I.P.C. will not be attracted in this case, whereas, Section -304 I.P.C. Hence, the bar in filing anticipatory bail application would not come in the way of the petitioner-applicant and it may be treated to be a case under Section -304 I.P.C. That being the position, this anticipatory bail application, apart from its merit, just for the sake of aforesaid observation be entertained, as such. Now, the merit of this claim is to be gone into at this stage. 8. Before proceeding further in this case, it would be relevant to take note of the fact (as alleged in the F.I.R.) -the very genesis of the F.I.R. registered against the applicant. Bare perusal of the F.I.R. itself is reflective of fact that as per the version contained in the first information report, a call was given to the informant on the cell phone no.9997699155 on 12.01.2021 at about 3:00 a.m. by accused Dr. Pradeep son of Beg Raj by his cell phone no.9358672920, the informant (father of the victim-Akash) reached the house of the applicant, whereupon he saw Dr. Pradeep and his wife and his son assaulting Vikas alias Akash aged about 18 years by lathi, danda and iron rod. Apart from that, they were also abusing him. The informant rushed to the spot and tried to save his son. When the informant asked to know about the matter, then he too was abused and threatened by the accused persons. The informant took his son to the hospital whose condition was serious. It has been alleged in the F.I.R. that the treatment is underway but the injured is serious. As per the version contained in the F.I.R., it appears that the informant Richhpal son of Ram Sharan handed over the report to the police on 13.01.2021, whereupon the F.I.R. was registered at Case Crime No. 30 of 2021, under Sections – 323, 504, 307, 352, 506, 325 I.P.C. on 16.01.2021. Lastly, the injured died on 29.01.2021, therefore, Sections 302 and 394 I.P.C. were added against the accused during investigation. 9. Learned counsel for the applicant has placed reliance on the statement of the informant, which has been brought on record, copy whereof is annexed as Annexure No. S.A.-2 to the supplementary affidavit filed in support of this application and claimed that the prosecution story has been changed, therefore, the same is full of embelishment and improved one. 10. 9. Learned counsel for the applicant has placed reliance on the statement of the informant, which has been brought on record, copy whereof is annexed as Annexure No. S.A.-2 to the supplementary affidavit filed in support of this application and claimed that the prosecution story has been changed, therefore, the same is full of embelishment and improved one. 10. Now, insofar as the observation of the Hon'ble Division Bench of this Court is concerned as above, it is noticeable that there is no such direction that in all eventualities, the application should and must be treated to be the one under Section – 304 I.P.C. but insofar as the facts of this case and the contents of the F.I.R. are concerned, there is no denial of fact that the deceased was called on the cell phone by one of the accused, Dr. Pradeep -the husband of the applicant by using his mobile. 11. Submission of learned counsel for the applicant is to the ambit that the first information report lodged against the applicant on 16.01.2021 is belated, whereas, the incident took place at 3:00 a.m. on 12.01.2021, therefore, the first information report itself speaks about high deliberation between the police and the informant. Further learned counsel for the applicant claimed that assuming it to be that the deceased came to the house of the applicant to commit robbery and in such situation the right to private defence can be exercised by the applicant, which she in fact did. No point that death of the victim was ever intended. Insofar as the allegation contained in the first information report is concerned, there is whisper of the applicant being present at her home. If the F.I.R. is believed to be true, then the statement of the informant recorded under Section – 161 Cr.P.C. becomes different version of the incident, wherein other persons are also involved in the commission of the crime. The emphasis was laid that the deceased entered into the house of the applicant at 3:00 a.m. with the intention to commit robbery and that way right to private defence accrued and exercised, otherwise there was no motive to commit the offence as such, either to cause any fatal injury to the deceased or to intend his death. There is no injury report of the sort, as such. 12. There is no injury report of the sort, as such. 12. Per contra, opposing the aforesaid contention of the learned counsel for the applicant, Sri Amit Daga, learned counsel for the informant reiterated his stand raised in the form of objection that the anticipatory bail application is not maintainable. Further, he submitted that so far as the observation of the division Bench of this Court regarding death caused by 'septicemia' is concerned, the same does not, out and out, reject allegation of the F.I.R. and does not negate the circumstances and facts of this case, which spell out and bring this case within the purview of Section – 302 I.P.C., therefore, the bar raised under Section – 438 (6) Cr.P.C. is very much applicable to this case. 13. Learned A.G.A. has contended that time and again the victim was asked to give statement but he was not in fit physical condition to make any statement which also goes to prove severity and magnitude of hard beating given to the victim by the applicant and the inmates of her family. 14. Also considered the rival submissions and perused the record. 15. Bare perusal of the material available on record shows that the incident in question took place on 12.01.2021 at 3:00 a.m., whereas, the deceased was taken to the hospital by the informant, where he was given treatment and after few days, he died on 29.01.2021. The post mortem examination was conducted the very same day. In the post mortem examination report, injury in the form of abrasion ad-measuring 4 cm x 1.5 cm present on the left side of parietal skull and it was stated to be old one and the cause of death was shown to be 'septicemia'. 16. Now, the point of injury being caused cannot be scrutinized vastly on its merit, however, it is obvious that call was given by the cell phone of the applicant's husband, only when the deceased came to the house of the applicant. Then, how can it be claimed that the deceased entered into the house of the applicant for committing robbery when he was called by one of the co-accused by using cell phone. Then, how can it be claimed that the deceased entered into the house of the applicant for committing robbery when he was called by one of the co-accused by using cell phone. However, the death is admittedly caused due to 'septicemia' as shown in the post mortem examination report but that particular aspect needs to be scrutinized by the trial court concerned itself while the applicant faces trial, for the specific reason that the seat of assault was on the left skull of the deceased. 17. At this stage to opine that this case is not covered under Section-302 I.P.C. would be an oversight as the entire merit of the case cannot be scanned by this Court. The jurisdiction of this Court is confined only to the extent of scrutiny within the four corners of Section -438 Cr.P.C. and not beyond that. Bare perusal of the F.I.R., the attendant facts and circumstances of the case and the statement on record should alone be taken into account. The assault was allegedly caused on the left parietal skull and the deceased was called by using the cell phone of the husband of the applicant. Admittedly, it is not a case that the applicant-wife of Dr. Pradeep was not present inside the house at that point of time, when the incident occurred. 18. Insofar as the facts of this case are concerned, in the light of various citations namely the State of Telangana Vs. Habib Abdullah Jeelani (2017) 2 SCC 779 and M/s Neeharika Infrastructure Pvt. Ltd. Vs. State of Maharashtra and others, LL 2021 SC 211 and considering the provisions of Section 438 Cr.P.C. as recently amended by the State of U.P., it can be assumed that in this case, the incident took place on 12.01.2021, whereas, the first information report was lodged against the applicant on 16.01.2021 alleging therein that the victim was allegedly assaulted / beaten by three accused including the applicant and the victim remained under treatment for about 10 to 17 days, lastly the victim succumbed to his injury on 29.01.2021, as septicemia was said to be the cause of death in the post mortem examination report. 19. 19. In the wake of the aforesaid fact position, the argument advanced on behalf of the applicant to the extent that this case would not be covered under Section 302 I.P.C. but at the most -the entire act alleged when taken together as a whole under facts and circumstances of the case, would amount to commission of culpable homicide not amounting to murder as defined under Section 299 I.P.C. and punishable under Section 304 I.P.C. Insofar as that argument and the contention is concerned, this Court is of the opinion that advantage should go to the applicant only for the purpose of disposal of this application under Section 438 Cr.P.C. and nothing more, though this observation should not come in the way of the trial court or the lower court concerned which would be dealing with the offence and vested with the jurisdiction to try the case and it would not be binding on the trial court as such. Therefore, for the sake of the above argument, this application is deemed to be entertained for offence under Section 304 I.P.C., as such maintainable. 20. Now the point is whether this development from 12.01.2021 to 29.01.2021 would itself entitle the applicant to interim protection under Section -438 Cr.P.C.. In that regard, after considering the case from viewpoint of Section 438 Cr.P.C. as amended by U.P. Amendment Act, 2018 (U.P. Act 4 of 2019) it can be said that the act of the applicant was intentional. In that regard though I would not explore merits of the case at this stage but the offence committed prima facie is found to be intentional, for the reason that the first information report contains specifically the very cell phone number by which the victim / deceased was called at the house of the applicant where he was beaten as a result of which he sustained injuries, and 'septicemia' developed during course of the treatment and lastly he succumbed to his injury. Can 'septicemia' caused here be treated to be extraneous to the act of causing assault by the applicant. Certainly, the answer is in the negative. 21. Thus, 'septicemia' has direct nexus with the injury caused to the deceased. 22. Can 'septicemia' caused here be treated to be extraneous to the act of causing assault by the applicant. Certainly, the answer is in the negative. 21. Thus, 'septicemia' has direct nexus with the injury caused to the deceased. 22. In view of the above fact situation, I do not find it a fit case for leniency being shown to the applicant because the entire application is silent on the point of denial of fact, whether the mobile cell phone as the one shown to have been used for calling the victim / deceased at the place of occurrence / house of the applicant was not used, as such. 23. In view of the discussion made herein above, the prayer for anticipatory bail is refused. Accordingly, the instant anticipatory bail application is devoid of force, and the same is dismissed. 24. It is made clear that observation made in this order shall have no bearing on the merits of the case and the same is confined to the disposal of this application and the trial court will not be prejudiced by the same while deciding the case on its merit or hearing the case on charge/discharge.