CRMPM/2285/2020 of DURGA DASS Vs STATE OF HP on 31 December 2020

IN THE HIGH COURT OF HIMACHAL PRADESH,SHIMLA

Cr.MP(M) No.2285 of 2020

Date of Decision : 31st December, 2020

Durga DassState of Himachal Pradesh

Versus

...Petitioner.

...Respondent.

Coram:

The Hon’ble Mr. Justice Anoop Chitkara, Judge.

NoWhether approved for reporting?[1]

For the petitioner : Mr. Vikram Thakur, Advocate. For the respondent :Mr. Nand Lal Thakur, Addl. A.G. and Mr. Ram Lal Thakur,Asstt. A.G., for the State.

COURT PROCEEDINGS CONVENED THROUGH VIDEO CONFERENCE

Anoop Chitkara, Judge (oral)

The present petition is filed by the petitioner under Section 439 ofthe 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 Sections302, 392, 201, read with Section 34 of the Indian Penal Code. In this case, policereport stands filed under Section 173 Cr.P.C.

2. I have heard learned counsel for the petitioner as also the learnedAssistant Advocate General for the respondent/State. Status report also Whether reporters of Local Papers may be allowed to see the judgment?

perused. Police file was also made available to the Court which was thoroughlyseen and returned.

3. The gist of the prosecution case necessary for the purpose ofdeciding this bail application is as follows:

(a) On receipt of information of a dead body of a lady lyingnear her house, police swung into action. Inspector SanjeevSood, SHO, Police Station Balh, started the investigation andreached the spot.

(b) After preliminary investigation, Sh. Prem Singh gave hisstatement to Inspector Sanjeev Sood, SHO, Police Station Balh,which he recorded as statement under Section 154 Cr.P.C. on28.9.2017 at 2.00 p.m., at Sakroha, which was the spot of theincident.

(c) In the said statement Prem Singh stated thatdeceased Fulmu Devi was his elder sister and was residingseparately at Sakroha. Her husband had died long time before.No issue was born to the couple. She used to reside alone inthe house.

(d) He further stated that on 28.9.2017, in the morningat about 9.30 a.m., his nephew Jalam Ram informed him thathis sister had died. On this he reached Sakroha.

(e) On reaching the house of his sister, he noticed thatlot of people had assembled there. The dead body of his sisterwas lying at the southern portion outside the house, withboth the arms of her sister tied with shawl, and blood oozingout from the mouth.

4.

(f) He further stated that his sister used to wear rings, made ofgold, in her ears but those were not noticed by him in herears.

(g) He further stated that when he checked theresidential room of his sister then he noticed that the lockholder of the trunk was broken and the lock was hanging fromit. The luggage of the room was also shattered.

(h) He further stated that his sister had hired oneKrishna Devi as a care-taker.

On these allegations, the present FIR was registered.

5. During investigation, police recorded the statement of KrishnaDevi under Section 161 Cr.P.C. She stated as follows:

(a) The husband of Fulmu Devi deceased had died 20years before and the couple was issue less.

(b) Fulmu Devi deceased used to reside alone in herhouse and she was slightly lame because one of her legshad been operated.

(c) She further stated that Fulmu devi had around onebigha land (750 Sq. Mts.) around her house. Apart fromthat there is also a single storied cemented house.

(d) She further stated that she used to take care ofFulmu Devi deceased for the last two and a half years. Shewould return back to her home after cooking the eveningmeals.

(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 atabout 8.30 a.m., she came to know through her daughter-in-law Babli that Fulmu Devi is dead.

(f) She further stated that some unknown persons havecaused her death, after committing robbery at her house.

6. The Investigating Officer got the post mortem examination of thedeceased conducted through Government Hospital Mandi at Ner Chowk. In thepost mortem report there is no mention of time between the injury and thedeath 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. Assuch Fulmu Devi is likely to have died any time from the evening of 27.9.2017till 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 thedeceased. It had been used by Durga Dass on 29[th] and 30[th] September, 2017, byinserting a SIM card in it. Further his statement under Section 27 of the IndianEvidence Act was recorded which led to the recovery of utensils sold to oneGagan Kumar.

8. Set of evidence collected by the prosecution is that Fulmu Devideceased used to sell illicit liquor. One Nar Bahadur had seen both the accusedvisit her house on 26[th] and 27[th] September, 2017. So case of the prosecution isbased also on the theory of ‘last seen’.

9. recorded by the Investigating Officer on 11[th] October, 2017, Statement of said Nar Bahadur under Section 161 Cr.P.C. was also

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 thedeceased at 7.30 p.m. and till that time she was alive. She was also with thedeceased. The evidence against Durga Dass is multiple, which includes usage ofmobile phone, discovery of stolen articles.

11. stands released on bail by this Court.

The first ground taken by the petitioner is that the co-accused

12. The answer to the contention lies in closing sentences ofParagraph-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 evidenceagainst accused Tek Chand was of ‘last seen’. A perusal of the facts would alsoshow that evidence against Tek Chand was of weak nature, that is why, thisCourt had granted bail to him.

The answer to the contention lies in closing sentences of

13. Mr. Vikram Thakur, learned counsel for the petitioner, hasprimarily argued on the ground that the petitioner has a child aged three yearswho 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 thepetitioner in a heinous crime like 302 IPC, then all similarly placed persons willalso 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 thisCourt to refer the statements of witnesses. The contention of learned counsel isthat the witnesses have turned hostile and whatever evidence have come is notsufficient.

16. Mr. Ram Lal Thakur, learned Assistant Advocate General, submitsthat the bail petition does not contain any such evidence and he would not be ina position to respond to the same unless such evidence is annexed in the bailpetition and he is given a copy of the same in advance. I find this contentionvalid 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 isdismissed at this stage, reserving liberty to the petitioner to file afresh byannexing all the documents which the learned counsel wants this Court to refer.Petition dismissed.

December 31, 2020(KS)

(Anoop Chitkara),Judge.