Himachal Pradesh High Court
Shakuntla Devi vs State Of H.P on 4 December, 2018
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr.MP(M) No. 1509 of 2018 Decided on : 4.12.2018 .
Shakuntla Devi .....Petitioner.
Versus
State of H.P. ....Respondent.
Coram:
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting? Yes.
For the petitioner: Mr. Satyen Vaidya, Sr. Advocate with Mr. Vivek Sharma, Advocate, r For the respondent: Mr. Hemant Vaid & Mr. Desh Raj Thakur, Addl. A.Gs. with Mr. Vikrant Chandel, Dy. A.G. Sureshwar Thakur, J (oral) The instant petition, has been filed by the applicant/accused, under Section 439, Code of Criminal Procedure, wherethrough, she seeks, an order, for hers being released from judicial custody, whereat she is extantly lodged, for, hers allegedly committing an offence, punishable under Sections 302, 201, read with Section 120B of the Indian Penal Code, in respect whereof, an FIR No. 56 of 2018, of, 30.4.2018, is, registered with Police Station, Jawali, District Kangra, H.P. ::: Downloaded on - 06/12/2018 22:56:35 :::HCHP ...2...
2. Prior to the institution of the instant bail application .
before this Court, the latter had instituted an application, cast under Section 439 Cr.P.C., before the learned Additional Sessions Judge (2), Kangra at Dharmshala, H.P., and, the latter had, on 10.7.2018, recorded an order, hence dismissing her bail application. However, since then upto now, the prosecution has filed, a, report under Section 173 Cr.P.C. before the learned Committal Court concerned, and, thereafter, the bailapplicant, has been charged for committing the afore offences, (i) whereupon the afore event hence obviously constitutes a changed circumstance, since, the, rejection of the earlier bail application, by the learned Additional Sessions Judge (2), Kangra at Dharmshala, H.P., upto, the institution of the instant bail application before this Court, (ii) whereupon it is hence rendered maintainable.
3. The principal accused, inflicted the fatal blows' upon the deceased hence purportedly, by, user of stones, and, danda, both whereof stood respectively recovered at his instance, by the Investigating Officer concerned, through respectively drawn memos (i) AND, upon the afore purported recoveries, the prosecution ascribes qua him, the role of his committing an ::: Downloaded on - 06/12/2018 22:56:35 :::HCHP ...3...
offence, punishable under Section 302 of the Indian Penal Code.
.
However, the bailapplicant, is also contended by the learned Additional Advocate General, to, also along with the afore, being an accessory, at, the fact, (ii) submission whereof is rested, upon, the fact, of, hers rather enabling effectuation, of, recovery of the burnt clothes, of the deceased. The alleged occurrence took place, in, the night, intervening 28.4.2018, and, 29.4.2018, and, the afore occurrence also took place in the house, jointly inherited by the bailapplicant, and, the afore principal offender, (iii) hence the learned Additional Advocate General contends, qua, hers' visibly being presumed, to be hence residing at the place of occurrence, along with her son(s), and, with hers not rearing any idea, of, alibi, hence he further contends, that, the afore submission rather gathering immense weight. However, for the reasons ascribed hereinafter, this Court negatives, his afore submission (a) the incident, occurring in the night, intervening 28.4.2018, and, 29.4.2018, being reported by the real daughter of the bailapplicant, to, the police, and, (b) in her statement, recorded under Section 161 Cr.P.C., hers' making clear echoings qua the bailapplicant rather unfolding to her qua the deceased, being murdered by her son ,one Matta Dass, (c) since the afore ::: Downloaded on - 06/12/2018 22:56:35 :::HCHP ...4...
rendered statement also galvanized, the criminal machinery, and, .
when the daughter, of, the bailapplicant, is not residing along with the latter, rather, is residing, at her matrimonial home, (iv) hence the afore rendered statement by one Reena, encapsulating, therein the afore version, is, a palpable display, visavis, the prima facie innocence, of the bail applicant. Moreover, the effect, of, the afore inference, is qua even if the bailapplicant, has enabled the recovery, of the burnt clothes of the deceased, thereupon, no argument can be made by the learned Additional Advocate General qua hers being, an, accessory at the fact.
4. Be that as it may, even the postmortem report, visa vis, the body of the deceased, rather stood, conducted on 1.5.2018, hence belatedly, since the illfated occurrence taking place, and, much subsequent to the afore rendered statement, recorded by the the bailapplicant, (i) hence the prosecution, has obviously precluded surfacing, of, material with respect to the timing, of occurrence or visavis the presence thereat, of, the bail applicant, (ii) whereupon all the afore inferences also acquire tenacity.
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5. In summa, at this stage, the only offence prima facie .
ascribable, visavis, the bail applicant, is, the one embodied, in, Section 201, of, the Indian Penal Code.
6. The bailapplicant/accused is suffering judicial incarceration, for, seven months, hence bearing in mind the aforesaid factum, this Court deems it fit and appropriate, importantly, when the Investigating Officer has reported that the bailapplicant, has throughout associated herself, hence, in the relevant investigation, to, hence afford, the facility of bail in favour of the bail applicant/petitioner. Moreso, when at this stage, no evidence has been adduced by the prosecution, demonstrating, that in the event of bail being granted to the bail applicant/petitioner, there being every likelihood of her fleeing from justice or tampering with prosecution evidence, Accordingly, the indulgence of bail, is, granted to the bail applicant/petitioner, on, the following conditions:
i) That she shall furnish personal bond, comprised in a sum of Rs. 5,00,000/ with two sureties in the like amount, to the satisfaction of the learned trial Court.
ii) That she shall join the investigation, as and when required by the Investigating agency;
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iii) That she shall not directly or indirectly make any .
inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade her from disclosing such facts to the Court or to the Police;
iv) That she shall not leave India without the previous
v) to
permission of the Court;
That she shall deposit her passport, if any, with the Police Station, concerned;
vi) That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and she shall be liable to be taken into custody.
6. In view of above, petition stands disposed of. Any observation made herein above shall not be taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
Dasti Copy.
4th December, 2018 (Sureshwar Thakur),
(kck) Judge.
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