Himachal Pradesh High Court
Rashma Devi vs State Of Himachal Pradesh on 4 September, 2021
Author: Vivek Singh Thakur
Bench: Vivek Singh Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 4th DAY OF SEPTEMBER, 2021
BEFORE
.
HON'BLE MR. JUSTICE VIVEK SINGH THAKUR
CRIMINAL MISC.PETITION (MAIN) NO.748 OF 2021
BETWEEN:-
RASHMA DEVI
AGED ABOUT 62 YEARS OLD W/O
LATE SH.SAMBHU RAM,
R/O VILLAGE SANWAR, POST
OFFICE PUDWA, TEHSIL
PALAMPUR, DISTRICT KANGRA,
H.P.
....PETITIONER
(BY SH. SUDHANSHU JAMWAL,
ADVOCATE)
AND
STATE OF HIMACHAL PRADESH
...RESPONDENT
(BY SH.RAJU RAM RAHI & SH.YUDHVIR
SINGH THAKUR, DEPUTY ADVOCATE
GENERALS)
Whether approved for reporting?
This petition coming on for orders this day, the Court
passed the following:
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2 Cr.M.P. (M) No. 748 of 2021
JUDGMENT
Petitioner is accused in case FIR No. 97 of 2020, dated 24.6.2020, registered under Sections 302, 328, 498A, 201 and 34 of .
Indian Penal Code (IPC) in Police Station Bhawarna, District Kangra, H.P.
2. Petitioner has been arrested in this case on 5.7.2020 and since then she is in custody and thus she has approached this Court seeking regular bail.
3. Petitioner is mother-in-law of deceased Shalu Devi.
Besides petitioner, her daughter Vandana Devi, son Vipan Kumar @ Vikku (husband of deceased) and son-in-law Ashwani Kumar (husband of Vandana Devi) have also been arrested in the case for murdering Smt.Shalu Devi wife of Vipan Kumar (co-accused).
4. As per status report filed on behalf of respondent-State, Shalu Devi (now deceased) had approached Police Chowki, Dheera, Police Station Bhawarna, with a written complaint, stating therein that she was wife of Vipan Kumar (accused), R/o Village Sanwar, Gram Pranchayat Pudwa and that during night of 21.6.2020, her sister-in-law, brother-in-law (husband of sister-in-law) and mother-in-law (petitioner) had overpowered her and her husband had poured a herbicide (used for spraying on grass) in her ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 3 Cr.M.P. (M) No. 748 of 2021 mouth, with intention to kill her. However, when her daughter started shouting, her sister-in-law (Nanad) and brother-in-law (Nandoi) had fled from the scene, on scooter, to their house at .
Maruh (Suri). Further that her mother-in-law used to harass her for bringing inadequate dowry and her husband used to demand a vehicle from her mother and for birth of two daughters, her husband and mother-in-law used to taunt her and her husband had also developed illicit relations with other ladies and she was having call recording of talks of her husband with those ladies, but when she disclosed the said recordings and played it before her Nanad and Nandoi, then sister-in-law (Nanad), in order to save husband of victim, tried to kill her and also took away the memory card along with them.
5. In the complaint, it was also stated that earlier also husband of complainant had gifted payal to a lady of Gharana Panchayat and it came in knowledge when goldsmith asked for payment thereof which was made by her mother-in-law to conceal the incident.
6. As per complaint, husband of complainant had also taken huge loan from PNB Thural without any information to the family and this fact was revealed to the family on receipt of a notice from the bank and at that time also whole amount was repaid by her ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 4 Cr.M.P. (M) No. 748 of 2021 mother-in-law, sister-in-law, brother-in-law and other relatives.
According to complaint, when, on 22.6.2020 at noon, mother of complainant had visited her in-laws, then her mother-in-law had .
abused her mother and asked to take the complainant to her parental home, whereupon her mother had taken her in an unconscious state to her home and today i.e. 24.6.2020 at 4:00 A.M. she regained consciousness and thereupon she approached the police with complaint.
7. On receiving the aforesaid complaint, case under Sections 328, 323 and 34 IPC was registered in Police Station.
Shalu Devi was taken to CHC Dheera and was medically examined on 24.6.2020 at 12:00 noon, where it was observed that there was abrasion of 2X3 CM over right side of chin, swelling and pain in lower lip, ulcer on tongue and lower lip and abrasion of 1X1 CM over right side of neck of the complainant. It was also observed by the doctor that there was pain in mouth and complainant was facing difficulty in speaking since last three days. As per MLC, patient had disclosed alleged history of forceful consumption of poisonous substance and beating by her husband and family members on 21.6.2020 at 9:00 P.M. at home, for which she took treatment on 22.6.2020 at private hospital from Doctor Sunil Dhiman. She was advised to undergo further medical investigation through certain ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 5 Cr.M.P. (M) No. 748 of 2021 tests from different departments of the hospital. Lateron complainant was referred to Rajinder Prasad Government Medical College and Hospital (RPGMC), Tanda for treatment.
.
8. After registration of FIR, her statement had not been recorded by the Police and, therefore, Investigating Officer had approached Medical Officer Dr. RPGMC, Tanda for getting opinion about fitness of Shalu for recording her statement. It was stated in the application that after registration of FIR, deceased Shalu was not able to speak and, therefore, her statement could not be recorded and, thus, a request was made to the Doctor to give opinion about the condition of deceased Shalu to record her statement. On this application Dr. Rohit Thakur had opined that patient was unfit to give statement.
9. During investigation, Police has recorded statement of Dr. Sunil Dhiman on 24.6.2020, wherein he has stated that deceased Shalu was brought to his clinic by her husband (Vipan accused) on 22.6.2020 at 9:00 A.M. and it was disclosed by her husband that she had consumed something during night and when he (Dr. Sunil Dhiman) had inquired about it from deceased Shalu, she did not speak and she had covered her face with dupatta and she was appearing to be alright and he had given her tablet of vitamin B Complex, injection vitamin B complex, tonic live-52 and ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 6 Cr.M.P. (M) No. 748 of 2021 Capsule Ogarazole and had advised her husband to get her medically checked up from somewhere else.
10. On 3.7.2020 bottle of herbicide, from which herbicide .
was forcibly poured in the mouth of complainant Shalu, was also taken in possession and sent for chemical analysis, Zonal Forensic Laboratory, Dharamshala.
11. On 4.7.2020, complainant Shalu had expired and her dead body was subjected to post mortem.
12. After death of Shalu, Section 302 IPC was also incorporated in the case and after postmortem of the dead body of deceased, report thereof was obtained, wherein opinion regarding cause of death in the case was kept reserved till Chemical Analysis and Histo Pathology Examination reports.
13. On 5.7.2020, petitioner Rashma Devi (mother-in-law of deceased) along with co-accused Vipin Kumar, Ashwani Kumar and Vandana Devi (respectively husband, brother-in-law and sister-in-
law of deceased) were interrogated and arrested.
14. On 9.8.2020 statement of Shagun alias Mansi, daughter of deceased Shalu and accused Vipan Kumar, aged approximately 9 years, studying in 4th class, was recorded under Section 164 Cr.P.C. before Judicial Magistrate 1st Class, Palampur, District Kangra, H.P. In her statement, Shagun alias Mansi had stated that ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 7 Cr.M.P. (M) No. 748 of 2021 her mother was beaten by her grand-mother, bua, buaie and father (accused persons) and her grand-mother had pressed throat of her mother, buaie had slapped, her father and bua were beating with .
chappal and thereafter her grand-mother caught her mother by the legs and buaie caught her by hands and firstly, her bua had forced her mother to consume a medicine which is sprayed on grass, but her mother vomited it and thereafter her father forcibly had made her mother to consume it and on that day call of her maternal grand-
mother (Nani) was also received and thereafter her maternal grand-
mother had taken them.
15. After taking into consideration report of Pathology, report of RFSL and postmortem report, two Doctors were of the common opinion that death of deceased was because of septicemic shock which could be possible, in this case, due to Paraquat poisoning, as alleged.
16. It is submitted by learned counsel for the petitioner that in the complaint dated 24.6.2020, it is stated that husband of deceased had poured the herbicide in the mouth of deceased.
Whereas in the statement of Sarla Devi (mother of deceased), it has been stated that deceased had informed her that deceased was overpowered by her husband, brother-in-law and mother-in-law (petitioner) and poisonous herbicide was poured in her mouth by ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 8 Cr.M.P. (M) No. 748 of 2021 Vandana (sister-in-law of deceased). Whereas Shagun, daughter of deceased, in her statement recorded under Section 161 Cr.P.C. had stated that her Bua (Vandana) had poured poisonous herbicide in .
mouth of her mother but in her statement, recorded under Section 164 Cr.P.C., she had stated that firstly her Bua and thereafter her father had forcibly poured herbicide in mouth of her mother.
17. It is further submitted by learned counsel for the petitioner that besides other grounds, petitioner craves indulgence of this Court for enlarging petitioner on bail being a lady of 62 years of age by extending the benefit of proviso of Section 437 Cr.P.C., dehors the statement of daughter of deceased recorded under Section 164 Cr.P.C and mention of name of petitioner in complaint as well as in the statement of witnesses recorded by the Police and the Magistrate.
18. Section 437 Cr.P.C. provides that a person was not be released if there appears reasonable ground for believing that he has been guilty of an offence punishable with death or imprisonment for life, but with proviso that such person may be directed to be released on bail if such person is under age of 16 years or a woman or is sick or infirm.
19. During adjudication of bail application, it was submitted by learned counsel for the petitioner that for detention of petitioner, ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 9 Cr.M.P. (M) No. 748 of 2021 her daughter, son-in-law and son, there is none else to look after not only the property, but also children of both families, i.e. children of her son and deceased Shalu and also children of accused Vandana .
and accused Ashwani Kumar, though they are being looked after by relatives, but they are facing problems and are under depression and on account of that, daughter of Vandana had tried to commit suicide. Respondent-State was directed, through Police to very these facts. In response thereto, statement of Pardeep Kumar, brother of deceased Shalu has been placed on record by respondent-State wherein he has stated that he is taking care of two daughters of deceased Shalu, namely, Shagun aged 8 years and Vashnavi aged 2 ½ years and he is earning his livelihood as a daily waged labourer and he would be taking care of daughters of his sister, as his mother Sarla Devi (Nani of children) has expired three months ago. Statement of daughter of Vandana, studying in +2, has also been placed on record by respondent-State, wherein she has stated that for facing difficulty in continuing her online study for want of android phone, she had consumed Phenyl, but her uncle (Mausa) had taken her to the doctor for treatment and her life was saved.
20. Learned Deputy Advocate General has submitted that in view of opinion of two Doctors, given on the basis of Pathology report, postmortem report and Chemical Analysis report of RFSL, it ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 10 Cr.M.P. (M) No. 748 of 2021 has been clearly established that petitioner alongwith others was involved in commission of heinous crime of cold blooded murder as for such opinion, report of RFSL, whereby it has been reported that .
no poisonous substance was found in stomach, intestine, spleen, liver, kidney and lungs, etc., is of no consequence because two doctors have given opinion, after taking into consideration the entire material available before them, including the RFSL report.
Therefore, it is submitted that petitioner is not entitled for bail and further that bail application filed by Vandana (daughter of present petitioner) bearing Cr.M.P. (M) No. 1970 of 2020 was dismissed by this Court after considering the entire facts and circumstances of the case.
21. It is contended by learned counsel for the petitioner that bail application of Vandana was dismissed vide order dated 29.12.2020 and, thereafter, circumstances have changed and further that keeping in view the age of the petitioner, she deserves to be treated differently than the other accused.
22. Considering the entire facts and circumstances of the case placed on record, submissions of learned counsel for the petitioner and respondent-State, gender, age and other circumstances and also factors, principles and parameters required to be considered at the time of considering the bail petition, I am of ::: Downloaded on - 31/01/2022 23:00:42 :::CIS 11 Cr.M.P. (M) No. 748 of 2021 the opinion that case of the petitioner can be segregated from other accused and she may be enlarged on bail.
23. Accordingly, petitioner is ordered to be enlarged on bail, .
subject to furnishing personal bond in the sum of `50,000/- with one surety in the like amount to the satisfaction of trial Court within a period of two weeks from today upon such further conditions as may be deemed fit and proper by the trial Court, including conditions enumerated hereinafter, so as to ensure the presence of the accused during trial and also subject to following further conditions:-
(i) That the petitioner shall make herself available to the police or any other Investigating Agency or Court in the present case as and when required;
(ii) that the petitioner 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 him/her from disclosing such facts to Court or to any Police Officer or tamper with the evidence.
She shall not, in any manner, try to overawe or influence or intimidate the prosecution witnesses;
(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;
(iv) that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;
(v) that the petitioner shall not misuse her liberty in any manner;
(vi) that the petitioner shall not jump over the bail;
(vii) that the petitioner shall keep on informing about the change in address, landline number and/or mobile number, if any, for her availability to Police and/or during trial;
::: Downloaded on - 31/01/2022 23:00:42 :::CIS 12 Cr.M.P. (M) No. 748 of 2021(viii) that the petitioner shall not leave India without permission of the Court.
24. It will be open to the prosecution to apply for imposing .
and/or to the trial Court to impose any other condition on the petitioner as deemed necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any other or further condition on the petitioner as it may deem necessary in the interest of justice.
25. In case the petitioner violates any conditions imposed upon her, her bail shall be liable to be cancelled.
r In such eventuality, prosecution may approach the competent Court of law for cancellation of bail, in accordance with law.
26. Learned trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139 dated 18.03.2013.
27. Observations made in this petition hereinbefore shall not affect merits of the case in any manner and are strictly confined for the disposal of the bail application.
28. The petitioner/counsel for the petitioner is permitted to produce copy of order downloaded from the High Court website and the trial Court shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.
::: Downloaded on - 31/01/2022 23:00:42 :::CIS 13 Cr.M.P. (M) No. 748 of 2021The petition stands disposed of in the aforesaid terms.
Dasti copy on usual terms.
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(Vivek Singh Thakur), th 4 September, 2021 Judge.
(Keshav)
r to
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