Allahabad High Court
Rajdhar Mishra vs State Of U.P. on 4 February, 2021
Author: Rahul Chaturvedi
Bench: Rahul Chaturvedi
HIGH COURT OF JUDICATURE AT ALLAHABAD Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46870 of 2020 Applicant :- Rajdhar Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Ashwini Kumar Awasthi,Manish Tiwary(Senior Adv.) Counsel for Opposite Party :- G.A.,Vaibhav Singh Hon'ble Rahul Chaturvedi,J.
Heard Sri Manish Tiwary, learned Senior Advocate assisted by Sri Atharva Dixit, learned counsel for the applicant, Sri Vaibhav Singh, learned counsel for the informant as well as learned A.G.A.
The applicant who is named in the FIR, is facing prosecution in Case Crime No.362 of 2019 under section 306 IPC, police station-Naini, District-Prayagraj and is behind the bars since 22.04.2020.
Long and short of the prosecution story is that one Kuldeep Tiwari has lodged the present FIR on 10.04.2019 at 10:52 hours for the incident said to have been taken place during intervening night of 09/10.04.2019 around 1:56 hours against the (i) applicant, (ii) Sumitra Mishra and few other unknown persons.
It is mentioned that Sumitra Mishra has been bailed out by coordinate Bench of this Court in Criminal Misc IInd Bail Application No.58135 of 2019 on 26.08.2020. Copy of the same is annexed as (Annexure-23) of the affidavit.
Contention raised by learned counsel for the applicant is that FIR mentioned above was lodged by one Kuldeep Tiwari, happens to be the "mama" of Rahul Mishra@Tinku(hence deceased) under section 302 IPC. After holding in-depth probe into the matter, the texture of the case was converted from section 302 to section 306 IPC by the Investigating Officer of the case and learned Sessions Judge has rejected his bail by impugned bail rejection order on 20.08.2020(Annexure-26) to the affidavit.
Prosecution story as flows from the FIR is in very limited compass, that deceased Rahul Mishra was residing in a rented accommodation at Allahapur, Prayagraj and was engaged in private job. During intervening night of 9/10.04.2019, the deceased named above, in odd hours of night went to the flat of applicant 404, Manas Vihar Colony, Naini, after having conversation with applicant's wife Sumitra Mishra(co-accused) on her mobile phone. It is alleged in the FIR that thereafter, the poor deceased was done to death in organized and planned way by applicant, his wife Sumitra Mishra and few others. In the FIR, it has been mentioned that around 1:56 am, the deceased gave a mobile call to one Abhay Raj Singh and thereafter his own "Nani" informing them, that he has been surrounded and facing imminent threat to his life. Thereafter, co-accused Sumitra Mishra around 2:45 hrs gave a call, informing that the condition of the deceased is precarious. She is in S.R.N. Medical College and asked them to come at once.
It has been submitted by learned counsel for the applicant that neither the first informant or any other person can give any ocular testimony about the way and manner of deceased done to death and involvement of named accused persons in commission of the said crime. Entire prosecution case hinges upon the hearsay evidence, more of speculative one and it is highly risky to rely upon those evidence without any cogent and concrete corroboration "indicting" and impeaching the applicant in this offence.
After the demise of the deceased, the dead body was sent to mortuary for its autopsy. The report (Annexure-2) indicates that deceased has sustained four multiple injuries over his person which includes multiple abraded contusion all over left side face and head. In addition to this, both the forearms were fractured and the bones were coming out of it and the cause of death is haemorrhage and coma as result of ante mortem injury. It is submitted that these injuries are suggestive of the fact that they may cause after falling from some height.
In the 161 Cr.P.C. statement of the informant, he has reiterated the same story with the addition that he has got firm faith that the applicant and his wife Sumitra Mishra with others have given deadly push to the deceased from the height, resulting his death. As mentioned above, informant is not an eye witness and after gathering informations from various quarters, he has created his own story implicating the applicant and his wife in this offence. The informant explicitly submits that present is the case of homicide, where name accused persons with intention to kill the deceased, has given him deadly push from height, causing his untimely death.
During the investigation, the police has collected C.D.R. of Sumitra Mishra, Abhay Raj Singh, as well as Smt. Kusum Devi, wife of the deceased. The C.D.R is annexed as Annexure-5 to the affidavit. It is interesting to mention here that the police has never tried to collect the exhaustive call details between Sumitra Mishra and the deceased so as to reflect the inter se relationship between them. Aforesaid annexure is with regard to the call details of that particular day alone.
The investigating team also recorded 161 Cr.P.C. statement of one Mrs. Farida Khan, an inmate of Flat No.B-701, her next door flat is B-702, a vacant flat, from where it is said that the deceased was allegedly thrown from the height by the accused/applicant. She states that she has not heard any noise of any marpeet, screaming, alarm or any other cry. In between 2:00 to 3:00 hours heard the noise of a male, asking the insider to open the door after knocking it. However, Abhay Raj Singh in his 161 Cr.P.C. statement revealed that co-accused Sumitra Mishra told him that deceased jumped from the height and committed suicide. From the place of jump, the police has not recovered any incriminating material which would even suggest that prior to give the deceased deadly push, he was subject to any marpeet or attempt to his life by the applicant. Thus, it was argued that the deceased after bolting himself from inside in Flat No.B-702 has jumped from the height. Precisely, this was the statement of informant too in his 'majeed bayan' dated 16.04.2019(annexure-9). In addition to above, Dr. Abhishek Singh and Dr. Anupam Trivedi, who conducted the post mortem of the deceased, also opined on the same lines, ruling out any scuffle or marpeet with the deceased during his life time and thereafter throwing him from the terrace/balcony.
During the course of investigation, the police has also recorded the 161 Cr.P.C. statement of various other flat owners of same apartment clearly indicates that, on the invitation of co-accused Sumitra Mishra, the deceased came and met her during odd hours of the night in the absence of her husband(the applicant). Meanwhile, accidentaly the applicant reached on the spot. After seeing the applicant, the guitly-mind(the deceased) immediately tried to fled away from the place and thereafter bolted him from inside in vacant flat No.B-702 and with the motive to save himself from the wrath of the applicant and public shame, jumped from that flat. As per providence, he sustained number of injuries over his person, which resulted in the shape of his life.
After assessing the entire evidence on record, the police has submitted its report under section 173(2) Cr.P.C.against the accused persons on 03.07.2019 under section 306 IPC.
It is further contended by learned counsel for the applicant that during course of investigation, yet another stream of story came into existence. The relationship between the applicant and his wife Sumitra Mishra was not at all congenial. He was residing with some other lady Ms. Anamika in a rented accommodation at Tashkant Marg, Civil Lines, Allahabad without divorcing his wife Sumitra Mishra. Though, this theory do not have direct bearing over the present case but certainly reflective of inter se relationship between the applicant and his wife Sumitra Mishra.
On these factual parameters, it was argued by Mr. Tiwary, appearing on behalf of the applicant, have urged that visiting the place of a lonely, young lady in odd hours of night and thereafter, seeing the applicant at his flat, the deceased tried to sneake away from the place, narrates the entire story by itself, needs no explanation. This fact achive greater importance and significance when the co-accused Sumitra Mishra with whom the deceased went to meet her, was bailed out by co-ordinate Bench of this Court(Criminal Misc. Bail Application No.58135 of 2019) on 26.08.2020.
Per contra, Sri Vaibhav Singh has filed his counter affidavit in which he questioned the conclusion drawn by the Investigating Officer of the case and converting the prosecution from section 302 to 306 IPC. In para nos.9, 16, 18 and 19 of the counter affidavit requires special attention of the Court. Averements made in paragraphs mentioned above may be point of view of the deponent of the counter affidavit. The doctors in their 161 Cr.P.C. statement clearly averred that after having leap from the height, these injuries may be caused. Just because, one Vaibhav Singh Advocate has initiated a proceeding as Criminal Misc. Case No.6492 of 2020 (168-2020) under section 340/195 Cr.P.C. against all the three Investigating Officers in which final verdict is awaited. The Court cannot stall the proceeding or defer the disposal of present bail application on behalf of applicant under section 306 IPC. The charge sheet submitted by the Investigating Officer cannot be brushed aside at this stage.
It has been asserted by learned counsel for the complainant that present case is a cold blooded murder and not a suicide, as opined by the Investigating Officer. Since, no one has seen the deceased while jumping from the 7th floor in the dead hours of the night and thus, it was argued that deceased's death is homicidal and not a suicidal, as inferred by the Investigating Officer. The applicant is habitual criminal having criminal antecedents of four cases.
I am afraid to accept contention of learned counsel for the informant at this stage. The charge sheet has been submitted and the court of competent jurisdiction has taken its cognizance. The prosecution, if so advice, may agitate its point of view at appropriate stage, during the trial. Since, the bail application of the applicant was rejected by the court of sessions under section 306 IPC, the court in exercise of power would decide the application under section 439 Cr.P.C. accordingly.
After hearing the rival submissions by the learned counsels, lets decide the moot pertinent question of law as to whether any conduct of the applicant would fall within the ambit of Section 107/306 IPC? Lets spell out the bare provisions of above-mentioned sections and related citations of Hon'ble the Apex Court in this regard. They are :-
Section 306 IPC provides the punishment for abetment of suicide, which reads thus :-
"Section 306- Abetment of suicide.- If any person commit suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extended to ten years, and shall also be liable to file."
Section 107 of the IPC defines the abetment, which reads thus:-
"Section 107- Abetment of a thing.- A person abets the doing of a thing, who--(First)-- Instigates any person to do that thing; or (Secondly)--Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or (Thirdly)-- Intentionally aids, by any act or illegal omission, the doing of that thing."
The word instigate literally means to goad, urge, forward, provoke, incite, encourage to do an act. A person is said to instigate another person, when he actively suggest or stimulates him to an act by means of language, direct or indirect or whether it takes the form of expression solicitation or of hints incitement or encouragement, instigation may be in expression word or may be simply conduct if a person created such a situation exploiting his position that an another person have not other option but to take the extreme step would be liable for abetment.
On this, learned counsel for the applicant has drawn the attention of the Court to the various legal pronouncement of Hon'ble Apex Court in this regard i.e. Abetment.
In the case of Chitresh Kumar Chopra vs. State (Gov. of NCT of Delhi) reported in (2010) 3 SCC (Crl.) 367, the relevant extract of paragraph 14 of the judgement quoted hereinbelow :-
"Speaking for the three-Judge Bench, R.C. Lahoti, J. (as His Lordship then was) said that instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of "instigation", though it is not necessary that actual words must be used to that effect or what constitutes "instigation" must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must spelt out. Where the accused had, by his acts or omission or by a continued course of conduct, created such circumstances that the deceased was left with no other option except to commit suicide, in which case, an "instigation" may have to be inferred. A word uttered in a fit of anger or emotion without intending the consequences to actually follow, cannot be said to be instigation."
There is yet another judgement of Hon'ble Apex Court in the case of Amalendu Pal alias Jhantu Vs. State of West Bengal reported in (2010) 1 SCC 707. Paragraph 12 and 13 of the judgement is quoted herein below:-
"12. Thus, this Court has consistently taken the view that before holding an accused guilty of an offence under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether the cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable.
13. In order to bring a case within the purview of Section 306 of IPC there must be a case of suicide and in the commission of the said offence, the person who is said to have abetted the commission of suicide must have played an active role by an act of instigation or by doing certain act to facilitate the commission of suicide. Therefore, the act of abetment by the person charged with the said offence must be proved and established by the prosecution before he could be convicted under Section 306 IPC."
The pioneer judgement in this regard of Hon'ble Apex Court in the case of Ramesh Kumar Vs. State of Chhattisgarh reported in (2001) 9 SCC 618. For ready reference, the relevant extract of the judgement is quoted herein below:-
"20. Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To satisfy the requirement of instigation though it is not necessary that actual words must be used to that effect or what constitutes instigation must necessarily and specifically be suggestive of the consequence. Yet a reasonable certainty to incite the consequence must be capable of being spelt out. The present one is not a case where the accused had by his acts or omission or by a continued course of conduct created such circumstances that the deceased was left with no other option except to commit suicide in which case an instigation may have been inferred. A word uttered in the fit of anger or emotion without intending the consequences to actually follow cannot be said to be instigation."
There is yet another judgement of Hon'ble Apex Court in the case of State of West Bengal Vs. Orilal Jaiswal reported in (1994) 1 SCC 73. For ready reference the relevant extract of the judgement is quoted herein below:-
"This Court has cautioned that the court should be extremely careful in assessing the facts and circumstances of each case and the evidence adduced in the trial for the purpose of finding whether the cruelty meted out to the victim had in fact induced her to end the life by committing suicide. If it transpires to the court that a victim committing suicide was hypersensitive to ordinary petulance discord and differences in domestic life quite common to the society to which the victim belonged and such petulance discord and differences were not expected to induce a similarly circumstanced individual in a given society to commit suicide, the conscience of the Court should not be satisfied for basing a finding that the accused charged of abetting the offence of suicide should be found guilty."
In the case of Ramesh Kumar Vs. State of Chhattisgarh (supra) Hon'ble Apex Court again observed in paragraph 20 of the judgement which is quoted herein below:-
"20.... The question as to what this the cause of a suicide has no easy answers because suicidal ideation and behavious in human beings are complex and multifaceted. Different indivicuals in the same situation react and behave differently because of the personal meaing they add to each event, thus accounting for individual vulnerability to suicide. Each individual's suicidability pattern depends on his inner subjective experience of mental pain, fear and loss of self-respect. Each of these factors are crucial and exacerbating contributor to an individual's vulnerability to end his own life, which may either be an attempt for self protection or an escapism from intolerable self."
In the latest judgement of Hon'ble Apex Court in the case of Arnab Manoranjan Goswami Vs. State of Maharashtra & Others decided on 27.11.2020 in Crl. Misc. Criminal Appeal No. 742 of 2020. Paragraph 57 of the judgement is quoted herein below:-
"The Hon'ble Apex Court has provided the guidelines that while considering the application for grant of bail under Article 226 in a suitable cases, the High Court must considered the settled factors, which emerges from the precedents of this Court. These factors can be summarized as follows:-
(i) The nature of the alleged offence, the nature of the accusation and the severity of the punishment in the case of a conviction;
(ii) Whether there exists a reasonable apprehension of the accused tampering with the witnesses or being a threat to the complainant or the witnesses;
(iii) The possibility of securing the presence of the accused at the trial or the likelihood of the accused fleeing from justice;
(iv) The antecedents of and circumstances which are peculiar to the accused;
(v) Whether prima facie the ingredients of the offence are made out, on the basis of the allegations as they stand, in the FIR; and
(vi) The significant interests of the public or the State and other similar considerations."
From the aforesaid discussion, it is clear that deceased who visited the place of the applicant, in the odd hours of the night, either on his own, or on the invitation of the co-accused Sumitra Mishra, was caught red handed by the applicant. In order to save him, from the public shame and not to earn bad name, he tried to sneak away from the site. He was guilty mind and that is why, he took his heels and bolted himself in the vacant flat no.B-702. When the applicant banged the doors, then left with no option, he has taken leap from its balcony/terrace. Visiting somewhere's place in dead hours of the night in the absence of co-accused husband, throws a grave question mark about the entire incident which need not be explained. The 161 Cr.P.C. of the daughter of the applicant Swaya Mishra clearly indicates that the applicant do not reside with them and during the intervening night of 9/10.04.2019, deceased came to his flat in the midnight and suddenly, the applicant also arrived at the same place and thereafter started scolding him. The deceased rushed to seventh floor of the building and bolted himself from inside and when the applicant has threatened him that he is calling the police, then he has taken jump from its balcony. In this transaction, the Court is of the view that none of the action of the applicant would fall within either of the three categories of Section 107 of IPC. As mentioned above, he was himself a guilty mind and trying to save his sham dignity and honour when caught red handed, he took this extreme step by taking a deadly leap from the height. So far as criminal antecedent is concerned, all the four cases were duly and satisfactorily explained in paragraph no.41 of the rejoinder affidavit.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail. However, it is made explicitly clear that none of the observation made by this Court while disposing off the present bail application would come in the way before learned trial court during trial. He is free to apply his judicial mind over the materials before him and then come to independent conclusion.
Let the applicant, Rajdhar Mishra, who is involved in Case Crime No.362 of 2019 under section 306 IPC, police station-Naini, District-Prayagraj, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS COUNSEL. IN CASE OF HIS ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST HIM IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 4.2.2021/Sumit S