CRMPM/1532/2017 on 27 December 2017

IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

Cr. MP(M) No. 1505 of 2017

Decided on: 27th December, 2017

__________________________________________________________________ Kapil Sharma

....Petitioner. Versus State of Himachal Pradesh.

…Respondent.

Coram

The Hon’ble Mr. Justice Chander Bhusan Barowalia, Judge. Whether approved for reporting?1 Yes. For the petitioner:

Mr. H.R. Jhingta, Advocate.

For the respondent: Mr. Pushpinder Jaswal, Dy. AG.

ASI Krishna Kumari, I.O. P.S. Sadar, Solan, District Solan, H.P. _________________________________________________________________ Chander Bhusan Barowalia, Judge (oral).

The present bail application has been maintained by the petitioner under Section 439 of the Code of Criminal Procedure seeking his release in case FIR No. 58 of 2016, dated 28.03.2016, under Sections 302 and 201 of Indian Penal Code, 1860 (hereinafter referred to as “IPC”), registered at Police Station Sadar, Solan, District Solan, H.P.

2. As per the petitioner, he is innocent and has been falsely implicated in the present case. He is resident of the place and neither in a position to tamper with the prosecution evidence nor in a position to flee from justice, so he may be released on bail.

1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

3. Police report stands filed. As per the prosecution, on 28.03.2017 police received information on telephone that a woman has been murdered at place Mashveera. The police reached the spot and got recorded the statement of one Shri Balbir, who stated that on 28.03.2016, around 07:30 a.m., when he was going to his shop, he saw smoke emitting from the house of the petitioner. He informed the owner of the house and after some time many persons reached on the spot. Efforts were made to extinguish the fire and one Praveen Kumar told them that there is a burnt body inside the room. A human skull was found in ash and an iron rod was also found inserted inside that body. The petitioner used to live with his mother in that premises and the complainant raised suspicion that the petitioner might have killed the deceased and to destroy the evidence he had set ablaze his house. On the basis of the statement so made by Shri Balbir, police investigation ensued. The spot was photographed and it was found that the body of the deceased was having an iron rod inserted inside it. The postmortem was conducted on the spot and the spot was inspected by SFSL team. The post mortem was also conducted by Forensic Science Expert from IGMC, Shimla. As per the postmortem report the cause of death was opined that probably deceased died due to penetrating wound on chest perforating heart in case of completely charred body. The investigation revealed that the petitioner committed the murder of the deceased with an iron rod. The petitioner uprooted the windows and doors and with the help of domestic goods, clothes etc. he set at ablaze the body of the deceased and thereafter he deliberately sat on a road and also put ash on his face. As per the prosecution, during the course of investigation a chappal stained with blood was found and on the person of the petitioner injury was found. The challan stands presented in the Court and the prosecution witnesses are being examined. Lastly, the prosecution has prayed for dismissal of the application.

4. Heard. The learned counsel for the petitioner has argued that the petitioner is innocent and he is neither in a position to tamper with the prosecution evidence nor in a position to flee from justice. He has further argued that the petitioner is resident of the place. Conversely, the learned Deputy Advocate General, has argued that the petitioner has committed a heinous offence and he also tried to destroy the evidence. He has further argued that the petitioner has killed his mother and all the evidence is against him and also the circumstances show that he is the real culprit. Lastly, it has been prayed that the application of the petitioner be dismissed.

5. I have gone through the rival contentions of the parties and the police report in detail.

6. At this stage taking into consideration the fact that the petitioner remained seated outside his house when his mother was being allegedly burnt by him inside his house and the fact that the deceased has suffered injury with jhabal on her thorax region, he was smeared with smog and also other circumstantial evidence, it cannot be held at this moment that the petitioner is innocent. Furthermore, the case is listed for the evidence of the prosecution and only two witnesses are to be examined, so at this stage taking into consideration the heinousness of the crime coupled with other circumstances, which have come on record, this Court finds that the present is not a fit case where the judicial discretion to admit the petitioner on bail is required to be exercised in his favour.

7. In view of the above, the petition, which sans merits, deserves dismissal and is accordingly dismissed. Pending application(s), if any, stand(s) disposed of. However, as the petitioner is behind the bars for the last more than one and half years, it is expected that the learned Trial Court will dispose of the matter at the earliest possible.

(Chander Bhusan Barowalia) 27th December, 2017 Judge (virender)