Allahabad High Court
Suryansh Kharbanda vs State Of U.P. on 8 May, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved/A.F.R
Neutral Citation No. - 2023:AHC:98693
Court No. 75
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION NO. 52326 of 2022
Suryansh Kharbanda.................... ......................Applicant
Through: Mr Alok Ranjan for the applicant
(Mr G.S. Chaturvedi, learned Senior Counsel)
Versus
State of U.P. ............................................Opposite parties
Through: Mr Shiv Kumar Pal (Government Advocate)
Mr O.P. Dwivedi, learned A.G.A (State)
Mr Raghuvansh Mishra, Mr Vidit Agarwal and
Mr Ashwani Tripathi, for informant
Index
Contents Page Nos.
Brief Facts.....................................................................2-4
Submissions on behalf of accused-applicant....................4-6
Submissions on behalf of the State and informant...........6-8
Discussion about the case............................................8-15
Conclusion....................................................... ........15-32
Result .......................................................................32-34
Observation and Direction in respect of investigation....34-36
Hon'ble Sanjay Kumar Singh,J.
1. Heard Shri Gopal Swaroop Chaturvedi, learned Senior Counsel assisted by Shri Alok Ranjan, learned counsel for the applicant, Shri Shiv Kumar Pal, learned Government Advocate assisted by Shri Om Prakash Dwivedi, learned Additional Government Advocate representing the State and Shri Raghuvansh Mishra, learned counsel along with Shri Vidit Agarwal and Shri Ashwani Tripathi, learned counsel appearing on behalf of the first informant.
2. By means of this application under Sections 439 of the Code of Criminal Procedure, applicant Suryansh Kharbanda, who is involved in Case Crime No. 162 of 2021, under Sections 498-A, 323, 504, 506, 304-B, 120-B IPC and Section ¾ of Dowry Prohibition Act, police station Nazirabad, district Kanpur Nagar, seeks enlargement on bail during the pendency of trial.
3. In short compass the facts of the case are that the informant Pawan Grover, who is the father of Anchal Kharbanda (hereinafter referred as 'the deceased') lodged a first information report on 20.11.2021 in respect of the incident which took place on 19.11.2021 against Suryansh (husband) Nisha (mother-in-law) Bharat Grover alias Kaku (phupha), Minakshi, Annu Khullar (paternal aunt) Puneet Kotwani, (brother-in-law)(Bahnoi) Nikita Kotwani (sister-in-law)(nand) and Tanya Grover with the allegations that the aforesaid accused persons used to demand Rs. 70,00,000/- (rupees seventy lac ) and indulged in fight (Marpeet) with his daughter and instigate her to commit suicide. Suryansh and his mother Nisha are of bad character and they also wanted to drag the victim in that misdeed. On 12.11.2021, all the accused persons with common intention tortured the victim physically and mentally and in the evening Suryansh, husband of the victim after beating her, took her cash and jewelries. The said incident was reported to the police by dialing 112 and 181. The FIR further alleges that her daughter used to telephone him several times a day and tell him about the harassment and torture meted out to her by her family members. On 19.11.2021 when the victim did not make any call, he informed the police by dialing 181 and when he went to the matrimonial house of the victim, he found her daughter dead hanging from the fan. All the aforementioned accused persons with common intention after killing his daughter hanged her from the fan.
4. After getting the information, the police rushed to the spot and conducted inquest proceeding as well as post mortem examination on the body of the deceased.
5. Inquest on the body of the deceased was conducted on 20.11.2021 between 8.30 AM to 11.15 AM, in which Shri Jitendra Bhalla (maternal uncle of the deceased), Shri Rajeev Madan, (Mausa of the deceased) Shri Arun Grover (uncle of the deceased), Shri Akshay (brother of the deceased) and Smt. Reeta Grover (aunt of the deceased) were the witnesses of inquest proceedings.
6. Post mortem on the cadaver was conducted by Doctor Sunil Kumar on 20.11.2021 at 12.55 PM. Doctor found the following ante-mortem injuries:
"Ligature Mark 29 cm x 3.5 cm around the neck with a gap of 7 cm right side back of neck.
Distance 5.5 cm below chin, 6 cm below left ear and 1.5 cm below right ear.
On dissection white hard and glistering subcutaneous tissue present under the ligature mark."
7. Shri Gopal Swaroop Chaturvedi, learned Senior Advocate appearing on behalf of the applicant submits as under:
7.1 Keeping in view the injuries sustained by the deceased, it is a case of hanging and not strangulation.
7.2 There was no mention of any dowry demand in the suicide note, which was given by the father of the deceased to the police on 24.11.2021.
7.3 There is nothing on record to show that the applicant ever instigated or abetted the deceased to commit suicide.
7.4 At the time of incident, both the applicant (husband) and his mother (mother-in-law) of the deceased were in Lucknow.
7.5 Incident has not taken place in the manner as alleged by the prosecution.
7.6 Investigating officers have conducted one sided investigation in collusion with the complainant.
7.7 Describing the nature and behaviour of the deceased, it is submitted that the deceased was completely free and very domineering woman. She lived her independent and luxurious life. She did not even like anybody stopping her from coming and going anywhere at any time. Referring her family photographs filed at pages 443 to 450, it is submitted that she was enjoying her family trip with the husband and in-laws. On 18.11.2020 and 02.4.2021 all the family members including deceased as well as her both maids namely Ms. Radhika Kumari and Ms Kiran Kumari had gone to Goa and Bangalore tour by flight, which itself demonstrate that exaggerated allegations of harassment etc. against the applicant and his family members are false.
7.8 It is vehemently urged that in fact, deceased had tortured the applicant and his mother, therefore, Nisha Kharbanda, mother of the applicant gave a written complaint dated 13.11.2021 to the Commissioner of Police, Kanpur about her harassment by the deceased-Anchal Kharbanda, on which SI Prem Kumari made an enquiry and the allegations against the deceased were found true in the enquiry report dated 13.11.2021, which has been made part of CD No. 14. Sub-Inspector Prem Kumari, along with her report dated 13.11.2021 had submitted a pen-drive containing video of harassment of Smt. Nisha Kharbanda, mother of the applicant by the deceased, but said pen-drive has been removed by the investigating officer from the record.
7.9 On 08.02.2022 also Navin Bhatia, a relative of the applicant sent a representation by speed post to A.D.C.P (crime) along with some photographs and pen drive, in which there is a recording of very vulgar and abusive conversation between the deceased-Anchal Kharbanda and her father Pawan Grover for investigating several aspects of the matter indicated in the representation. Transcript of the conversation has been filed at page Nos. 178 to 202 of the paper book. It is pointed out that reference of the above documents/evidences has been mentioned in CD No. 47, but the investigating officer in collusion with the complainant did not take pain to investigate the same in correct perspective.
8. Opposing the prayer for bail of the applicant, Shri Shiv Kumar Pal, learned Government Advocate assisted by Shri Om Prakash Dwivedi, learned Additional Government Advocate representing the State and Shri Raghuvansh Mishra, learned counsel appearing on behalf of the first informant submit as under:
8.1 The applicant is the husband of the deceased. The marriage of the applicant with the deceased took place on 09.2.2019 and she committed suicide on 20.11.2021, i.e. within seven years of marriage and, therefore, the presumption of abetment and dowry death under Section 113-A and 113-B of the Indian Evidence Act respectively shall be drawn against the applicant and bail application of the applicant is liable to be rejected on this ground alone.
8.2 Deceased was a woman of 25 years and she left behind her toddler. The first information report speaks two essential details, (a) demand of dowry by the husband (for the purpose of business of Suryansh) (Suryansh ke Vyapar hetu). (b) cruelty by the accused towards the deceased.
8.3 A week before the incident, police helpline 112 and 181 were contacted to make complaints of harassment and jewelries having been taken forcibly by the applicant.
8.4 Mobile phones of the deceased, her mother and father were collected and made part of case diary. Computer operator of the police station made transcript of the whats app chat and conversation and also gave certificate under Section 65 of the Indian Evidence Act regarding its genuineness.
8.5 There was proximate link between the demand of dowry, cruelty and suicide committed by the deceased.
8.6 Referring the transcript of telephonic conversation dated 23.10.2021 between the deceased and her father filed at Page 279 to 291 of the paper book and whats-app chat dated 16.10.2021 between the deceased and her mother, filed at page 271 to 272 of the paper book, it is submitted that the demand of dowry has been well established by digital record and the husband was the source of harassment of the deceased.
9. In the light of the rival contentions and the charges levelled against the appellants and to place the matter in its correct perspective, it is considered necessary to take note of the relevant materials on record.
10. The first informant Shri Pawan Grover, during investigation, has also handed over suicide note to the police on 24.11.2021 purportedly written by the deceased, which was found in the pocket of jeans of deceased's son kept in a bag. The suicide note reads as under:
(Anchal Kharbanda) Mera Beta (Yansh Kharbanda) agar hame zara si bhi kharoch ya nuksaan pachuchta hai toh uske zimedaar Bharat Grover, Meenakshi Grover, Suryansh Kharbanda, Nisha Kharbanda aur Nikita Kotwani aur Puneet Kotwani Mujhe bahot torture kar rahe hai pichhle kuch dino se:
(1) Denying money, Bills etc. (2) Restricted me to go outside (of house). (3)If I dared to go out, he won't let me in. (4) His mother abuses me all time. (5) Every night he is out of the house.
11. In order to ascertain the veracity of the suicide note, it was sent to the Forensic Science Laboratory, Jhansi, which confirmed that it was in the handwriting of the deceased, but so far as signature on the suicide note is concerned, it does not correspond with the signature of the deceased.
12. Statement of the first informant was recorded on 20.11.2021 in which he reiterated the versions given in the first information report.
13. The investigating officer has recorded the statement of Akshay Grover, brother of the deceased on 24.11.2021, in which he has stated that the marriage of his sister was solemnized with the applicant on 09.2.2019. After the marriage the behaviour of the applicant towards the deceased was very cruel. After the deceased became pregnant, the applicant started mentally and physically torturing her as the deceased did not want to deliver the child. On 08.4.2020, deceased has informed him that her husband has brutally beaten her. When his parents went to the matrimonial house of the deceased to propitiate her in-laws, they threatened that unless Rs. 70,00,000/- (rupees seventy lac) will not be given by them for the business of the applicant, they will beat the deceased. On 12.11.2021 at about 8.00 in the night the applicant took away all the cash and jewelries of the deceased in two bags, information whereof had been given by the deceased to the police by dialing 112 and 181. On 19.11.2021 at about 6.00 P.M., he had a conversation with the deceased. When he along with his parents reached the house of the deceased at about 1.45 AM, they found the deceased hanging.
14. Instead of recording the statement under Section 161 Cr.P.C., of Smt. Reena Grover, mother of the deceased, the investigating officer has taken her written statement on 25.11.2021 in which she has made allegations of demand of dowry of Rs. 70,00,000/- (rupees seventy lac) and torture meted out to the deceased by her in-laws.
15. Shri Jitendra Bhalla (maternal uncle of the deceased), Shri Rajeev Madan, (Mausa of the deceased) Shri Arun Grover (uncle of the deceased), Shri Akshay and Smt. Reeta Grover (aunt of the deceased), who were the witnesses of inquest proceedings have given their written statements.
16. Statement of Radhika, daughter of Gopal, who has been working in the house of the applicant and the deceased was recorded by the investigating officer. She stated that she has been working in their house for the last about two years. For about one and a half year she has been looking after the son of Anchal (deceased). Whenever the quarrel take place, Anchal, her husband and mother-in-law bolt the room from inside. Applicant-Suryansh used to slap the deceased. The quarrel started after the birth of their son. The applicant used to smoke hookah. His friend also come to smoke hookah. Whenever, the applicant works out on the upper portion of the house, Nisha (mother-in-law) asked not to go there. She told to the deceased about this. She further stated that in the night intervening 19/20 between 12.00 and 1.00 in the night deceased after giving the child to Kiran, left for her room. On knocking the door, when the door was not opened, they saw from the glass that deceased was hanging from the fan. The information to this effect was given to the applicant from the phone of guard.
17. In her second statement, which was recorded on 08.122021, Radhika, daughter of Gopal stated that Anchal (deceased) always used to quarrel with Suryansh (applicant). One day, Anchal (deceased) beaten the applicant with broom. Anchal's family members also came to the house one or two times. Once, in the presence of her father, Anchal (deceased) assaulted her husband by tumbler. She used to say that she will leave her husband. She does not take care of her son. She further stated that she along with Kiran used to take care of deceased's son. From the conduct of the deceased, it appeared that she was a little insane. Her treatment was going on in Madhuraj Hospital and that she used to take medicines. On 12.11.2021, quarrel took place and the deceased was indulged in chaos and abusing all the members. Thereafter, the applicant went to her sisters house along with his mother Nisha. He came back in the evening and took the jewelries with him as the deceased was putting the locker on fire. Thereafter, the deceased called the police. On 13.11.2021 again police came to the house. Applicant and Nisha also came. Deceased was also called by the police. Two-three days before her death, deceased, while she was talking to his father, said that she will hang herself. On 19.11.2021 Kiran saw the scarf (Chunni) hanging from the fan, thereafter she removed it. In the night at about 12.00, when this witness Radhika and Kiran went to her room to take diaper and knocked the door, she neither opened the door nor received the phone. When they went to balcony, they noticed that she was standing on the bathroom and her neck was crooked. On seeing her in that posture, they scared and informed the applicant from the phone of guard.
18. Statement of Kiran, daughter of Suresh, who is also working in the house of the applicant, was recorded on 20.11.2021. She stated that she has been working in the house for about three months. She was with Ayansh (son of the deceased). At about 12.00 in the night she along with Radhika knocked the door, but she did not open the door. Thereafter, she informed the applicant from the phone of Guard.
19. Second statement of Kiran was recorded on 08.12.2021, in which she stated that deceased does not look after her child. From the conduct of the deceased, it appeared that she was a little insane. Her treatment was going on in Madhuraj Hospital and that she used to take medicines. On 12.11.2021, quarrel took place and the deceased was indulged in chaos and abusing all the members. Thereafter, the applicant went to her sister's house along with his mother Nisha. He came back in the evening and took the jewelries with him as the deceased was putting the locker on fire. Thereafter, the deceased called the police. On 13.11.2021 again police came to the house. Applicant and Nisha also came. Deceased was also called by the police. She always used to quarrel with the applicant and Nisha (mother of the applicant) and breaks the household articles of the house.
20. Statement of Ram Pratap Singh, who was working in the house of the deceased and applicant as guard was recorded on 20.11.2021. He stated that whenever quarrel took place between the applicant and the deceased, their relatives come to propitiate them. In the night intervening 19/20.11.2021 both the girls (maid) came to him and from his mobile spoken to the applicant. The child was also with them. After some time, Suryansh (applicant) and his in-laws along with police reached there and broken the glass of room, they found the deceased hanging.
21. In his statement Satish Chandra Vishwakarma, who was working in the house of the applicant as guard, has also stated that on 19/20.11.2021 both the girls (maid) came to him and asked that they have to talk to the applicant. Thereafter, they spoken to the applicant from the mobile of Ram Pratap. The child was also with them.
22. Statement of Ram Naresh alias Ram, who was also working in the house of the applicant as guard, was record on 24.11.2021 in which he has stated that quarrel between the applicant and the deceased was usual and in a month at least three-four times they used to quarrel.
23. Statement of Raja Ram, who was also a security guard in the house of the applicant, was recorded on 24.11.2021 in which he has stated that quarrel between the applicant and the deceased was usual.
24. Statements of Amit Singh and Vivek Yadav, who were working as bouncer (personal security guard) of the applicant were also recorded, who have stated that on the fateful day and time, the applicant were not at home, but he along with his mother were living in his sister's house and did not come to his house at Ashok Nagar since 13.11.2021. Prem Chandra, who was working as driver of Nisha Kharbanda, mother of the applicant, also stated that they were not at home and were living in Arya Nagar.
25. Having heard the learned counsel for the parties and examined the matter in its entirety as well as case diary containing more that 1600 pages produced by the Government Advocate representing the State, I find that the marriage of the deceased with the applicant was solemnized on 09.2.2019. Applicant's house and parental house (Maika) of the deceased are in district Kanpur. The deceased was aged about 25 years and was an able bodied lady. As per description of Case Diary No. 41 prepared on 03.01.2022, on 12.11.2021 at 22:15:05 from the mobile of Smt. Reena Grover, mother of the deceased a call was made at 181 informing the police that Suryansh (applicant) took all the money and jewelries from the lockers and at present he is in the house of his sister. Again on 13.11.2021 at 19:20:59 a call was made from the mobile of Reena Grover at 181 to the effect that deceased is being ousted from her house and that her husband (applicant) took away all the jewelries. On 15.11.2021 at 08.49.08 again on the call of Reena Grover, mother of the deceased, when the police contacted the applicant, he told the police that there is danger to his life from the deceased. On 20.11.2021 at about 01:27:46, Smt. Reena Grover, mother of the deceased called at 181 informing the police that her daughter is not picking up the phone and when the police rushed to the house of the deceased, they came to know that deceased has died. At the house the persons from maternal side of the deceased were present, whereas no person from her in-laws was there. Radhika and Kiran (maid servants) in their statements stated that on 12.11.2021, the deceased was indulged in chaos and abusing all the members. Thereafter, the applicant went to her sister's house along with his mother Nisha. He came back in the evening and took the jewelries with him as the deceased was putting the locker on fire. Thereafter, the deceased called the police. On 13.11.2021 again police came to the house and that on 20.11.2021 when Radhika and Kiran went to her room to take diaper and knocked the door, she neither opened the door nor received the phone. When they went to balcony, they noticed that she was standing on the bathroom and her neck was crooked. On seeing her in that posture, they scared and informed the applicant from the phone of guard. After some time maternal family members of the deceased along with police came there and broken the glass and entered the room.
26. The aforesaid entries in the case diary coupled with the statements of Radhika and Kiran go to suggest that the applicant had removed the jewelries from the house on 12.11.2021 as the deceased was putting the locker on fire and was living in her sister's house and on the day and time when the deceased committed suicide, he was not at his home.
27. So far as suicide note which was found in the pocket of jeans of the toddler of the applicant and the deceased and was given to the police by the informant, is concerned, I find that no allegation of demand of dowry was levelled by the deceased against her husband and her in-laws.
28. I also find that in the post-mortem examination report, except ligature mark, no other injury was found on the body of the deceased and viscera was preserved and as per report of the Forensic Science Laboratory, Jhansi dated 12.5.2022, in viscera no poison was found.
29. Further in the conversation between the deceased and her mother and father, no specific demand of dowry has been mentioned by them. I also find that prior to the incident, neither in the call recording nor in the whats app chat, there was any demand of Rs. 70,00,000/- and for the first time, it has been mentioned in the FIR.
30. Since Radhika and Kiran, who are key witnesses in this case because they always stayed with the deceased-Anchal Kharbanda and took care of her toddler, in their statements have exposed the act and conduct of the deceased that deceased used to beat the applicant with broom (Jhadu), breaks the household article, take medicines for her illness, always indulge in marpeet, putting the locker on fire and does not care of her toddler etc., therefore, the investigating officer did not make the said statements as part of the charge sheet. Further the investigating officer has not given any cogent reason in the case diary for not considering the statements of Radhika and Kiran and also not including them in the list of witnesses while submitting the charge sheet dated 14.2.2022.
31. Along with the bail application certain photographs were annexed at pages 451 to 454. I find that in some photographs deceased was seen beating the applicant, which find corroboration from the statement of Radhika and Kiran, whereas it is argued from the complainant's side that the said photographs are not genuine.
32. So far as the prosecution case that the deceased was killed and then hanged does not find corroboration from the post-mortem report, which shows that exaggerated allegations have been levelled. It appears that after the marriage, the deceased did not want to deliver a child. She even did not take care of her toddler, therefore, wear and tear of matrimonial issues had arisen. I also find that balance as on 07.10.2021 in the account of the deceased was Rs. 1,07,365/-.
33. So far as taking the written statements of some of the witness of the complainant's side and treating the same as statement under section 161 of Cr.P.C. is concerned, it is well settled that it is a normal rule of construction that when a statute vests certain power in an authority to be exercised in a particular manner then the said authority has to exercise it only in the manner provided in the statute itself. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted.
34. The F.I.R. was lodged against eight accused persons, out of whom, five persons, namely, Minakshi, Annu Khullar, Puneet Kotwani, Nikita Kotwani and Tanya Grover have been exonerated after investigation and final report has been submitted in their favour.
35. Smt. Nisha Kharbanda, mother-in-law of the deceased with similar accusation and Bharat Grover (Kaku), have been granted bail by the Coordinate Bench of this Court vide order dated 27.5.2022 and 10.10.2022 in Criminal Misc. Bail Application Nos. 3398 of 2022 and 31590 of 2022, which have not been challenged before the Apex Court as informed by the counsel for the applicant.
36. Mr. Raghuvansh Mishra, learned counsel for the complainant heavily relied upon the section 113-A of the Indian Evidence Act. On the other hand Mr. Shiv Kumar Pal, learned Government Advocate made emphasis upon Section 113-B of the Evidence Act. Considering the rival submissions of the learned counsel for the parties on this issue, here it would be apposite to discuss about the statuary presumption under Section113A and 113B of the Evidence Act, 1872.
37. Section 113A reads as follows:
113A. Presumption as to abetment of suicide by a married woman.-When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.
Explanation.--For the purposes of this section, "cruelty"shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).]
38. It is well settled that the mere fact that if a married woman commits suicide within a period of seven years of her marriage, the presumption under section 113-A of the Evidence Act, 1872 would not automatically apply. The term "the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband." would indicate that the presumption under section 113-A of the Evidence Act, is discretionary and the Court can consider the nature of cruelty to which the woman was subjected to, having regard to the meaning of the word "cruelty" in section 498-A of the Indian Penal Code. "Abetment of suicide" is also confined to the case of persons who aid or abet the commission of the suicide. In the matter of an offence under section 306 of the Indian Penal Code, abetment must attract the definition thereof in section 107 IPC. Abetment is constituted by instigating a person to commit an offence or engaging in a conspiracy to commit, aid or intentional aiding a person to commit it.
39. Section113B reads as follows:
113B. Presumption as to dowry death.-- When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person had caused the dowry death.
Explanation. For the purposes of this section, dowry death shall have the same meaning as in section 304B of the Indian Penal Code (45 of 1860).
40. The words "soon before her death" occurring in Section 304-B of Indian Penal Code are to be understood in a relative and flexible sense. Those words cannot be construed as laying down a rigid period of time to be mechanically applied in each case.
41. In the light of Section 113B of the Indian Penal Code, for the conviction under Section 304-B of the Indian Penal Code, the following essential ingredients are to be established/proved before the Trial Court :
"(a) the death of a woman should be caused by burns or bodily injury or otherwise than under a 'normal circumstances';
(b) such a death should have occurred within seven years of her marriage;
(c) she must have been subjected to cruelty or harassment by her husband or any relative or her husband;
(d) such cruelty or harassment should be for or in connection with demand of dowry; and
(e) such cruelty or harassment is shown to have been meted out to the woman soon before her death."
42. In the case in hand, accused is husband and is seeking bail pending trial. The issue which arises before this Court is whether if wife committed suicide within a period of seven years from the date of her marriage, the bail prayer of accused-husband is liable to be rejected straight away merely by drawing adverse presumption of abetment of suicide under Section 113-A of the Evidence Act, or presumption of dowry death under Section 113-B of the Evidence Act ?
43. In the light of above issue, it is relevant to mention the brief background of the case. Initially in the F.I.R. it was the case of the complainant that the deceased was killed and then hanged, but in the investigation the same does not find corroboration from the post-mortem report, as cause of the death of the deceased has been found due to hanging. She committed suicide in her room which was locked from inside. Admittedly on the day of the incident, the accused-applicant (husband) and his mother (mother-in-law) were not in the house at Kanpur but they were in Lucknow. In the suicide note produced by father of deceased, there is no allegation of demand of dowry. It is a case where allegation of cruelty has been levelled by both the sides against each other, but investigating officer has conducted one sided investigation and submitted charge-sheet in haste manner on 14.02.2022 through Case Diary No. 46 dated 14.02.2021 against the applicant only relying upon the statements of the family members of the deceased ignoring other materials in favour of the accused-applicant on record, on which, concerned court below took cognizance on 17.02.2022. Even the transcript of telephonic conversations between the deceased and her father on which learned Government Advocate and learned counsel for the complainant heavily relied upon has been brought on record by the investigating officer through Case Diary No. 57 dated 28.03.2022 much after submitting charge-sheet against the applicant and taking cognizance of the case. Material evidences provided from the side of the accused though have been taken on record through case diary Nos.14 and 47, but no investigation has been done on the same, for the reason best known to the investigating officer.
44. There is no dispute that the parameters for considering the bail of accused pending trial and conviction or acquittal of accused after adducing evidences by both the parties before the trial Court are different. This Court is of the view that each case turns on its own facts and circumstances. Even a little difference between the facts of two cases, may alter the entire aspect. In view of the provisions under Section 113A and 113B of the Evidence Act, it is not that the Courts will shut eyes and act as a silent spectator in all the cases while considering bail applications, the Courts are duty bound to consider broader aspect of the matter and in the light of nature of allegations, the relevant materials of the case diary either produced by the complainant's side or by the accused's side to prove his/her innocence cannot be ignored because bail matters are also related to the valuable liberty of the accused.
45. A complaint has also been filed by Mrs Nisha Kharbanda, mother-in-law of the deceased to the Commissioner, Mahanagar, Kanpur on 13.11.2021 about the behaviour of the deceased towards her stating inter alia therein that the marriage of her son Suryansh Kharband was solemnized with the deceased on 09.2.20219 as per Punjabi rites and ritual. After the marriage, she came to know that Anchal (deceased) is mentally retarded. Every day she used to indulge in anarchy, fracas, beating and also extend threats of sending jail in false cases. The complaint further alleges that she also used to beat her husband. In this regard, the applicant has also given a written complaint to the Senior Superintendent of Police, Kanpur Mahanagar on 27.7.2020. The complaint made by Mrs. Nisha Kharbanda has been received by the Reception Officer, Police station Nazirarabad, district Kanpur Nagar on 13.11.2021 vide token No. 166/102. Copy of the said complaint is extracted herein below:
माननीय कमिश्नर, दिनांक 13.11.2021 उत्तर प्रदेश पुलिस, महानगर कानपुर आदरणीय महोदय, विषयः- बहू द्वारा दी जाने वाली प्रताड़ना के सम्बन्ध में प्रार्थना पत्र
सविनय निवेदन है कि प्रार्थिनी निशा खरबन्दा पत्नी स्व० सुरेन्द्र खरबन्दा प्रमुख समाजसेवी की पत्नी है एवम् भवन सं० 111-ए/108 अशोक नगर, कानपुर की निवासिनी है, प्रार्थिनी के पति शहर के प्रतिष्ठित समाज सेवी थे, जिनकी समाज सेवा की ख्याति पूरे शहर में थी वह आर्ट ऑफ लिविंग/ रोटरी क्लब कानपुर (पश्चिम) के माध्यम से सेवा करते रहते थे।
प्रार्थिनी के दो सन्ताने हैं पुत्र श्री सूर्यान्श खरबन्दा का विवाह (पूर्वनाम) ऑचल ग्रोवर-वर्तमान नाम श्रीमती ऑचल खरबन्दा पुत्री श्री पवन ग्रोवर के साथ दिनांक 09 फरवरी 2019 को कानपुर नगर में पंजाबी रीतिरिवाज के अनुसार हुआ था, विवाहोपरान्त यह ज्ञात हुआ कि ऑचल मानसिक रूप से अस्वस्थ है।
किन्तु समाजिक प्रतिष्ठा / लोकलाज के भय से उसके अवगुणों को छिपाये रखा, जबकि ऑचल खरबन्दा के अवगुण एवम् दुष्ट चरित्र में दिन-दूनी रात चौगनी वृद्धि होती गई जिससे प्रताड़ित होकर प्रार्थिनी का स्वास्थ्य खराब होता गया, ऑचल आये दिन बिना किसी कारण के अराजकता, मारपीट, धमकी जेल भेजना मुकदमें इत्यादि की धमकी देती रही, मेरे पुत्र के साथ मारपीट करती रही, इस सम्बन्ध में मेरे पुत्र द्वारा दिनांक 27/7/2020 को वरिष्ठ पुलिस अधीक्षक कानपुर महानगर के यहाँ लिखित सूचना देकर मदद की गुहार लगायी थी जिसकी प्रति संल्गन है।
प्रार्थिनी विधवा है, प्रार्थिनी के पुत्र के अतिरिक्त अन्य कोई सहारा नहीं है, कल ऑचल द्वारा एक झूठा आरोप की मेरा पुत्र 28 माह के पुत्र के साथ मारपीट करने का आरोप लगाते हुए 112 पर डायल कर दिया जिससे भयग्रस्त होकर प्रार्थिनी अपने इलाज एवम् स्वास्थ लाभ हेतु अपनी पुत्री के यहाँ कल से शिफ्ट हो गई हैं पुलिस के आने पर उससे उसने मेरे पुत्र पर आरोप लगाया कि हम लोग घर का जेवरात लेकर चले गये हैं उपरोक्त तथ्यों को देखते हुए आपसे विनम्र प्रार्थना की जाती है कि प्रार्थिनी को जान माल की सुरक्षा प्रदान की जाये।
एवम् श्रीमती ऑचल खरबन्दा को उक्त निवास स्थान से बेदखल करने के निर्देश दिये जाये ताकि प्रार्थिनी अपने निवास में शान्ति पूर्वक अपना बचा हुआ जीवन व्यतीत कर सके अन्यथा मानसिक विधित्त बहु के आचरण से पीड़ित होकर प्रार्थिनी के जीवन को खतरा है एवम् ऑचल भी मानसिक विधिप्तता के कारण कोई भी गलत कदम उठाकर प्रार्थिनी अपने विरुद्ध कुछ भी कर सकती है।
अतः पुनः विनम्र निवेदन है कि सम्बन्धित थाने को आवश्यक निर्देश देने की कृपा करें।
धन्यवाद।
ह० अप० (निशा खरबन्दा) पत्नी स्व० सुरेन्द्र खरबन्दा निवासिनी-111-ए/108, अशोक नगर कानपुर Mob. 8400068888
46. It appears that on the said complaint, on the direction of the In-charge Inspector, an enquiry was made by SI Prem Kumari, posted at police station Nazirabad, district Kanpur Nagar. After enquiry, SI Prem Kumari submitted enquiry report. She, in her statement under Section 161 Cr.P.C. also disclosed the said fact. Here it would be apposite to reproduce the enquiry report:
सेवा में, श्रीमान प्रभारी निरीक्षक महोदय, थाना नजीराबाद कानपुर नगर विषय- आवेदिका श्रीमती निशा खरबन्दा पत्नी स्व० सुरेस खरबन्दा नि०111A/108 अशोक नगर थाना नजीराबाद कानपुर नगर द्वारा दिये गये प्रार्थना पत्र की जांच आख्या के सम्वन्ध में रिपोर्ट-
महोदय, सविनय निवेदन है कि आवेदिका श्रीमती निशा खरबन्दा पत्नी स्व० सुरेस खरबन्दा नि०111A/108 अशोक नगर थाना नजीराबाद कानपुर नगर द्वारा दिये गये प्रा०पत्र की जाँच मैं म०उ०नि० व मय हमराह म०का० 5010 निशा यादव को साथ लेकर मौके पर उपस्थित आये मौके पर आवेदिका श्रीमती निशा खरखन्दा व सूर्यांश खरखन्दा व बहू आँचल खरखन्दा मौजूद जिनसे घटना के संबंध मे पूछताछ की जा रही है।
बयान आवेदिका ........... श्रीमती निशा खरखन्दा पत्नी स्व० सुरेन्द्र खरबन्दा उम्र करीब 54वर्ष निवासी 111ए/ 108 थाना नजीराबाद कानपुर नगर ने पूछने पर बताया कि मेरे पति का देहांत 05वर्ष पहले हो गया था मेरे पति का एमडीएच मसाले का बिजनेस था तब मेरा बेटा सूर्यांश छोटा था लेकिन फिर भी मेरे बेटे ने मेरे पति का बिजनेस कड़ी मेहनत करके संभाल लिया मेरी बहू आचल ग्रोवर पुत्री पवन ग्रोवर द्वारा संपत्ति को अपने नाम करवाने के लेकर मेरे बेटे सूर्यांश के साथ मारपीट करना एवं भद्दी-भद्दी गालियां देती है जानलेवा हमला करती है मेरी बहू के अवैध लोगो के साथ संबंध है और उनका आना जाना है एव मुझे व मेरे बेटे के खाने पीने पर भी प्रतिबंध लगाती है मै और मेरा बेटा बाहर का खाना खाकर काम चलाते है मेरी बहू को मेरा बेटा हर संभव खुश रखने का प्रयास करता है मेरी बहू कीमती से कीमती चीजो को तोड़ देती है मै बहू आये दिन धमकी देती है कि जिस दिन मै तुझे व तेरे बेटे सूर्यांश को मरवा दूगी उस दिन मै तेरी पूरी प्रोपर्टी पर ऐश करूंगी। आवेदिका ने एक वीडियो दिखाया जिसमे बहू आंचल द्वारा अपने पति सूर्यांश के साथ मारपीट कर रही है और अपनी मेरे साथ गन्दी-गन्दी गालिया दे रही है और जान से मारने की धमकी दे रही है। आवेदिका से एक पैन ड्राइव मे वीडियो लेकर अवलोकन कर संलग्न आख्या किया गया एव आवेदिका द्वारा दिये गये अपने इलाज से संबंधित मेडिकल प्रपत्र अवलोकन करने के पश्चात संलग्न आख्या की गयी। जो बयान वो सत्य है।
बयान आवेदिका का पुत्र .......... सूर्यांश पुत्र स्व० सुरेन्द्र खरबन्दा उम्र करीब 25वर्ष निवासी 111ए/108 थाना नजीराबाद कानपुर नगर ने पूछने पर बताया कि मेरी विवाह आंचल ग्रोवर पुत्री पवन ग्रोवर निवासी 117/9/218 तुलसी नगर काकादेव के साथ 09 फरवरी 2019 मे हुआ था। मेरे पिता का देहांत 05वर्ष पहले हो गया था मेरे पिता का एमडीएच मसाले का बिजनेस था तब मै छोटा था और मुझे बिजनेस के बारे में जानकारी नहीं थी अपने पिता के बिजनेस को मैने कडी मेहनत करके संभाला। और मै हर संभव अपनी पत्नी को खुश रखने का प्रयास करता रहा हूँ मेरी पत्नी कीमती से कीमती चीजो को तोड देती है और मेरी पत्नी आचल ग्रोवर द्वारा संपत्ति को अपने नाम करवाने के लेकर मेरी मां पर दबाव बनाने लगी तथा मेरी पत्नी आचल का मेरे साथ मारपीट करना एवं भद्दी-भद्दी गालियां देती है व मेरे ऊपर जानलेवा हमला करती है मेरी पत्नी के अवैध लोगो के साथ संबंध है और उनका आना जाना है एवं मेरी पत्नी कभी भी मेरी व मेरी माँ की हत्या करवा सकती है मुझे अपनी पत्नी से अपनी व अपनी मां का जान का खतरा है एव मेरी मां व मेरे खाने पीने पर भी प्रतिबंध लगाती है मै और मेरी मां बाहर का खाना खाकर काम चलाते है है व आये दिन धमकी देती है कि जिस दिन मै तुझे व तेरी माँ को मरवा दूगी उस दिन मै तेरी पूरी प्रोपर्टी पर ऐश करूंगी। जो बयान दिया वो सत्य है।
बयान आवेदिका की पुत्र बधू ......... आचल ग्रोवर पत्नी सूर्यांस खरबन्दा नि० 111A/108 अशोक नगर कानपुर नगर उम्र करिब 25वर्ष ने पूछने पर किसी भी बात का स्पष्ट जबाब नही दिया। और चुप रही।
तत्पश्चात आस पास के लोगो से जानकारी करने का प्रयास किया गया तो कुछ लोगो ने आपसी बुराई की वजह से पहचान न जाहिर करने की शर्त पर बताया कि निशा खरखन्दा अक्सर हम लोगो से अपनी प्रताडना की बात बताती रहती है एव निशा खरखन्दा की बहू आचल ग्रोवर की सारी गतिविधिया हम लोग देखते भी है सिर्फ मनमाने तरीके से अपना एकाधिकार घर परिवार पर रखना चाहती है और अपनी सास निशा खरखन्दा व पति सूर्यांश खरखन्दा से अक्सर गाली गलौच व विवाद करती रहती है कई बार हम लोगो ने भी समझाने बुझाने का प्रयास किया लेकिन वो मानने को तैयार नही है यह सत्य है कि यह आचल ग्रोवर अपने पूरे परिवार को प्रताड़ित कर रही है।
जांच मे वाक्यात इस प्रकार पाये गये कि आवेदिका की बहू आंचल ग्रोवर पत्नी सूर्यांस खरबन्दा नि० 111A/108 अशोक नगर कानपुर नगर द्वारा अपनी सास (निशा खरबन्दा) एवं पति सूर्यांस खरबन्दा के साथ आये दिन मारपीट करना एवं पूर्ण संपत्ति के अपने नाम करवाने के लिये धमकाना एवं प्रताणित करना एवं मुकदमा करवाने व जेल भेजने की धमकी देना एवं आवेदिका तथा अपने पति सूर्यांश को जान से मरवाने की धमकी देना पाया गया। एवं आवदिका कई गंभीर बीमारियो से ग्रसित है। आवेदिका ने एक वीडियो दिखाया जिसमें आवेदिका को वहू आचल अपने पति के साथ मारपीट कर रही है एवं अपनी सास निशा खरबन्दा को गन्दी गन्दी गालिया दे रही है। एवं अपनी सास को एवं अपने पति को जान से मारने की धमकी दे रही है। आवेदिका की बहूँ आँचल ने अपनी गलतियो को स्वीकार किया है। आवेदिका द्वारा दिये गये अपने इलाज से संबंधित मेडिकल प्रपत्र एवं वीडियो की पैन ड्राइव अवलोकन करने के पश्चात संलग्न आख्या की गयी।
श्रीमान जी उपरोक्त प्रा०पत्र के संबंध मे जांच से आवेदिका श्रीमती निशा खरवन्दा उररोक्त के प्रा०पत्र के आधार पर संपत्ति को लेकर आवेदिका की बहूँ श्रीमती आँचल ग्रोवर कोई भी अप्रिय घटना की जा सकती है या करवायी जा सकती है। इससे इंकार नही किया जा सकता वादिनी की वहूँ श्रीमती आँचल द्वारा पूरे घर का उत्पीड़न किया जा रहा है। आवेदिका की उम्र 55वर्ष है पति का देहान्त हो चुका है कई गम्भीर पैरालाइसिस जैसी वीमारियो से ग्रसित है। इनका देखरेख की आवस्यकता है परन्तु वहूँ द्वारा किसी प्रकार की देखरेख न करके उपर से प्रताड़ित किया जा रहा है। उपरोक्त सभी जांच के तथ्यों से श्रीमान SHO महोदय थाना नजीराबाद कानपुर नगर को अवगत कराया जा रहा है।
ह० अप० ( प्रेम कुमारी) ( उ०नि०) संलग्नक- थाना नजीराबाद कानपुर नगर 1- रिपोर्ट- 01वर्क दि० 13/11/2021 2- मेडिकल प्रपत्र की छायाप्रति-07वर्क 3- पैन ड्राइव- 01
47. After going through the case diary, I find that above mentioned complaint dated 13.11.2021 of Smt. Nisha Kharbanda and enquiry report thereon submitted by SI Prem Kumari has been kept on record as enclosure of CD No. 14. Similarly, representation of Naveen Bhatiya (filed at pages 456-467 of the paper book), photographs and pen drive containing CCTV footage and vulgar telephonic conversation between the deceased-Anchal Kharbanda and her father Pawan grover (filed at Page No. 178 to 202) have been made part of the case diary No. 47, but investigating officer did not make any effort to investigate that aspect of the matter.
The relevant extract of CD No. 47 is extracted below:
"श्री नवीन भाटिया के द्वारा अभियोग मे नामित अभियुक्तो की तरफ से मुकदमा उपरोक्त से सम्बन्धित एक प्रार्थना पत्र डीसीपी क्राइम महोदय को दिया गया है जो आज डाक पैड से प्राप्त हुआ। प्रार्थना पत्र मे प्रथम सूचना रिपोर्ट मिथ्या होने के आधार के सम्बन्ध मे 13 बिन्दु अंकित किये गये है तथा अभियुक्तो के बचाव मे 07 बिन्दु एवं अन्य अभियोजन साक्ष्य के संदेहास्पद होने के A से J तक आधार दिये है। प्रार्थना पत्र मे कुल 26 बिन्दु का समावेश किया गया है प्रार्थना पत्र के साथ सूर्यांश खरबंदा, आँचल खरबंदा व निशा खरबंदा के फोटो व एक पेन ड्राइव भी संलग्न की गयी है। प्रार्थना पत्र मय संलग्नक सीडी किया जा रहा है।"
48. The investigating officer has not assigned any cogent reason as to why he has not investigated the case in respect of the complaint made by Nisha Kharbanda on 13.11.2021 to the Commissioner, U.P. Police, Mahanagar, Kanpur as well as in respect of above mentioned materials provided from the side of accused. Investigating Officer neither taken pain to open and see the materials (video of beating the applicant by the deceased and vulgar telephonic conversation between deceased and her father available in pen-drive, which has been filed at page no 178 to 202 of the paper book) provided from the accused's side nor recorded the transcript of the same in the case diary. Investigating Officer even did not ask Naveen Bhatia about the source and certificate under Section 65B of the Evidence Act regarding said video and telephonic conversation available in the pen-drive whereas he, vide letter dated 01.12.2021 had asked the complainant Pawan Grover about the source of origin regarding the material provided by him in the pen-drive.
49. However, in the absence of the certificate under Section 65 of the Evidence Act, this Court does not deem it fit to consider the aforesaid evidences provided by the accused' side in pen-drive.
50. In the present case the allegation of harassment and cruelty has been levelled by both sides against each other. Learned Government Advocate for the State after arguing the matter at length, has lastly conceded that no sincere effort has been made by the investigating officer to investigate the material evidences provided from the accused side, while it is accepted on record and mentioned in CD Nos. 14 and 47.
51. Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the learned counsel for the parties as discussed and noted above, this Court is of the opinion that the applicant has made out a case for bail. Hence, the bail application is hereby allowed.
52 Let the applicant Suryansh Kharbanda, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:
(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant 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 the court or to any police officer or tamper with the evidence.
(iii) That after his release, the applicant shall not involve in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by court concerned before the release of the applicant.
53. In case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of the applicant.
54. It is clarified that observations made herein above are only limited to the extent of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence to be adduced uninfluenced by anything mentioned in the order.
55. Before parting with the case, I would like to mention that fair and unbiased investigation are the fundamental canons of our criminal jurisprudence and are quite in conformity with the constitutional mandate enshrined in Articles 20 and 21 of the Constitution of India. Every investigation has to be conducted in a fair manner and in accordance with law. Fair and proper investigation is the primary duty of the investigating officer. In every civilized society, the police is invested with powers of investigation of a crime to secure punishment for the criminals and it is in the interest of the society that the investigating agency must act honestly and fairly and the investigating officer should not ignore the materials on record because such acts shake the confidence of the common people not only in the investigating agency, but in the ultimate analysis in the system of dispensation of criminal justice. Where there is stringent provisions under the law, high responsibility lies on the investigating agency. The duty of the investigating officer is not only to bolster up the prosecution case, but to bring out the unvarnished truth. The ethical conduct is also essential and investigation should be free from objectionable features or legal infirmities.
56. Hon'ble Supreme Court in Common Cause Vs. Union of India (2015)6 SCC 332, held as under:
" There is a very high degree of responsibility placed on an investigating agency to ensure that an innocent person is not subjected to a criminal trial. This responsibility is coupled with an equally high degree of ethical rectitude required of an investigating officer or an investigating agency to ensure that the investigations are carried out without any bias and are conducted in all fairness not only to the accused person but also to the victim of any crime, whether the victim is an individual or the State."
The aforesaid decision has been followed by Hon'ble Supreme Court in Maghavendra Pratap Singh alias Pankaj Singh Vs. State f Chhattisgarh, 2023 SCC OnLine SC 486.
57. Not investigating the materials provided from the side of the accused and only making the same as part of C.D Nos. 14 and 47 is a serious issue and it is not excepted from the investigating officer, who is in the rank of Deputy Superintendent of Police. This Court may observe that the investigating officer did not meet the obligations, he was under.
58. In view of the above, the matter is referred to the Director General of Police, U.P. Lucknow to look into the matter in the light of the observations of this Court as mentioned in preceding paragraph Nos. 30, 45 to 50 and 55 to 57 relating to faulty investigation and issue suitable guideline in respect of fair investigation in all cases within four weeks in order to maintain the public faith in investigating agencies as well as upon the courts.
Order Date :- 08.5.2023 Ishrat