Allowed

Kamlesh Kumari v. State of Hp

Himachal Pradesh HC3 Aug 2022CRMPM/1133/2022

Case brief

AI extract

What is this about?

The High Court granted bail to two petitioners accused in a murder trial, emphasizing the presumption of innocence. Despite serious charges, the court noted lack of direct evidence against them, citing CCTV footage that exonerated the petitioners from specific acts, and emphasized that detention before conviction has a punitive content requiring a humane approach.

What did the court decide?

Petitioners enlarged on bail subject to personal bond of Rs. 2,00,000/- each with two local sureties and conditions prohibiting tampering with evidence and leaving India without permission.

Kamlesh Kumari Vs State of Hp — Bail and Remand | Himachal Pradesh HC (2022)

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IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA ON THE 3^rd DAY OF AUGUST, 2022 BEFORE

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HON’BLE MR. JUSTICE SANDEEP SHARMA CRIMINAL MISC.PETITION (MAIN) Nos.871 & 1133 of 2022

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Between:-

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CRIMINAL MISC. PETITION (MAIN) NO. 871 OF 2022

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SMT. DAMYANTI, W/O YASHPAL, R/O HOUSE NO. 103/12, RAM NAGAR, DISTRICT MANDI, H.P. AGED ABOUT 52 YEARS.

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PETITIONER

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(BY MR. SAHIL MALHOTRA, ADVOCATE) AND STATE OF HIMACHAL PRADESH

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RESPONDENT

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(BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATE GENERALS WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL

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MR. ANUBHAV CHOPRA, ADVOCATE FOR THE COMPLAINANT)

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CRIMINAL MISC. PETITION (MAIN) NO. 1133 OF 2022

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SMT. KAMLESH KUMARI, W/O DHARAMPAL, R/O VPO BARSI, TEHSIL BALH, DISTRICT MANDI, H.P., AGED ABOUT 53 YEARS.

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PETITIONER

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(BY MR. SAHIL MALHOTRA, ADVOCATE) AND STATE OF HIMACHAL PRADESH

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RESPONDENT

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(BY MR. SUDHIR BHATNAGAR AND MR. NARINDER GULERIA, ADDITIONAL ADVOCATE GENERALS WITH MR. SUNNY DHATWALIA, ASSISTANT ADVOCATE GENERAL

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MR. ANUBHAV CHOPRA, ADVOCATE FOR THE COMPLAINANT)

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Whether approved for reporting? Yes.

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These petitions coming on for orders this day, the Court passed the following:

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ORDER

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Since both the petitions arise out of same FIR, same wee taken up together for hearing and are being disposed of vide this common judgment.

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Bail petitioners, namely Damyanti and Kamlesh Kumari, who are behind the bars since 17.03.2022, have approached this Court in the instant proceedings filed under Section 439 Cr.PC, for grant of regular bail in FIR No. 71/2022, dated 17.03.2022, under Sections 302, 147, 148 & 149 of IPC, registered at Police Station Sadar, District Mandi, H.P.

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Respondent-State has filed status report, perusal whereof reveals that on 17.03.2022, at about 5 PM., Police Control Room, Mandi, received information that one person namely Raj Kumar alias Raju has drowned in the Beas river. Police after having reached the spot found that 7 to 8 people were throwing stones on the deceased Raj Kumar alias Raju, who with a view to save his life jumped in

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the11.5 Beas river. Though Raj Kumar alias Raju crossed the river and sat on one big boulder, but one of the accused named in the FIR came from behind and gave blow of danda on his head, as a consequence of which, he fell in the Beas river and drowned. Complainant namely Surender, who is eye witness to the incident, got his statement recorded under Section 154 Cr.P.C, alleging therein that on 17.03.2022, at about 11 A.M., he had gone to Seri Munch for celebrating Holi. He alleged that at about 3.30 P.M., while he reached back home, he saw one person namely Raj Kumar alias Raju running on the bank of Beas river. He alleged that 9 to 10 people including three ladies were chasing Raj Kumar alias Raju carrying stones in their hands. He alleged that deceased Raj Kumar alias Raju jumped in the river and sat on a boulder on the other side of the river. He alleged that 4 to 5 people after having crossed Bhyuli bridge, reached near Raj Kumar alias Raju from the other side and gave blow of danda on his head, as a consequence of which, he fell in the river. He alleged that though deceased Raj Kumar alias Raju raised his head and arms twice-thrice in water, but ultimately he drowned. Complainant named hereinabove also disclosed to the police that he can identify the persons, who were throwing stones upon deceased Raj Kumar alias Raju. In the aforesaid background, FIR, as detailed hereinabove, came to be lodged against the persons namely, Dharampal, Surender Kumar, Sahil Garg, Yashpal, Rahil, Abhinay Garg, Satish Kumar and present bail petitioner, who all are members of the one family. Since nothing remains to be recovered from the present bail petitioners,

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they11.5 have approached this Court in the instant proceedings for grant of bail.

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Mr. Sudhir Bhatnagar, learned Additional Advocate General, while fairly admitting the factum with regard to filing of the challan in the competent court of law, contends that though nothing remains to be recovered from the present bail petitioners, but keeping in view the gravity of offences alleged to have been committed by them, they do not deserve any leniency and as such, prayer having been made on their behalf for grant of bail may be rejected. Learned Additional Advocate General, further submits that there is overwhelming evidence adduced on record by the prosecution, suggestive of the fact that both the petitioners were also running behind deceased Raj Kumar alias Raju and they also hurled stones, as a consequence of which, deceased was compelled to jump in the Beas river. Mr. Bhatnagar, also states that since all the accused are family members and there is a history of prior animosity inter se them and deceased Raj Kumar alias Raju, they with an intention to kill deceased Raj Kumar alias Raju, compelled him to run towards river and as such, they have been rightly booked under Sections 302, 147, 148, 149 of IPC. Lastly, Mr. Bhatnagar states that since prosecution evidence is yet to commence, it may not be in the interest of justice to enlarge the petitioners on bail because in the event of their being enlarged on bail, they may tamper with the prosecution evidence.

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Having heard learned counsel representing the parties and perused the material available on record, this Court finds that on

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the date of alleged incident, deceased Raj Kumar alias Raju ran towards Beas river with a view to save himself from the accused named in the FIR, who were allegedly throwing stones on him. Record reveals that prior to the alleged incident, fight took place around 11 A.M. inter se deceased and one of the accused namely Abhinay Garg. Allegedly, deceased gave blow of pressure pipe on the head of Abhinay Garg. With a view to take revenge, family members of Abhiny Garg chased deceased Raj Kumar alias Raju, who after having seen persons coming behind him, ran towards Beas river. As per prosecution story, deceased Raj Kumar alias Raju after having crossed Beas river sat on one boulder on the other side of the river, but accused namely Dharampal along with 2-3 other accused reached on other side of the river and gave blow of danda on the head of deceased Raj Kumar alias Raju, as a conse11.5quence of which, he fell down and drowned in the Beas river. Precisely, the case of the prosecution against the bail petitioners herein is that they both were throwing stones on the deceased Raj Kumar alias Raju, but having seen the CCTV Footage and Video recording made available to this Court by learned Additional Advocate Genera and Mr. Anubhav Chopra, learned counsel representing the complainant, this Court finds that though one lady wearing magenta colour suit can be seen standing and walking around the bank of river, but definitely she was not throwing stones on the deceased Raj Kumar alias Raju, rather CCTV Footage and Video made available to this Court nowhere suggest presence of second lady. In Video and CCTV Footage only one lady can be seen, who

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was though present on the spot, but was definitely not throwing the stones. In the present case, one of the accused Dharampal reached on the other bank of the river from other side of Bhayuli bridge and thereafter gave blow of danda on the head of deceased, as a consequence of which, he fell down in the river. Though other accused, save and except, petitioners herein can be seen throwing stones upon the deceased Raj Kumar alias Raju while he was sitting on the boulder, but even in that situation, petitioners herein cannot be seen throwing stones. Since, it has come in the investigation that on the date of alleged incident, Holi fair was being held at Seri Munch, Mandi and entire family of accused Abhinay Garg was present in the Holi fair, but unfortunately, scuffled took place inter se Abhinay Garg and deceased Raj Kumar alias Raju, wherein allegedly deceased Raj Kumar alias Raju gave blow of pressure pipe on the head of Abhinay Garg. Being agitated on account of beatings given to Abhinay Garg, his entire family chased deceased Raj Kumar alias Raju, who unfortunately subsequently died on account of drowning. Though, evidence collected on record clearly indicates that accused Dharampal along with 2-3 persons gave blow of danda on the head of deceased Raj Kumar alias Raju while he was sitting on the boulder on the other side of the river Beas., but definitely, there is no direct evidence available, at this stag, to connect present bail petitioner with the offence alleged to have been committed by them. Since, it is the admitted case of the prosecution that deceased Raj Kumar alias Raju fell from boulder on account of his having been given blow of

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danda by accused Dharampal, it would be too premature, at this stage, to conclude the complicity, if any, of the bail petitioners herein in the alleged commission of offence, who were incidentally present on the spot on account of Holi fair. Though, the case at hand is to be decided by the Court below in totality of evidence collected on record by prosecution, but keeping in view the aforesaid glaring aspects of the matter, this Court sees no reason to let the bail petitioners incarcerate in jail for indefinite period during trial, especially when challan stands filed and nothing remains to be recovered from them. It appears that entire family of Abhinay Garg, who was allegedly given beatings by deceased Raj Kumar alias Raju, have been put behind bars. Otherwise also Hon'ble Apex Court as well as this Court have held in catena of judgments, that till the time, guilt of a person is not proved in accordance with law, he/she is deemed to be innocent. Apprehension expressed by learned Additional Advocate General that in the event of bail petitioners being enlarged on bail, they may flee from justice, can be best met by putting them to the stringent conditions.

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The Hon’ble Apex Court in Criminal Appeal No. 227/2018, Dataram Singh vs. State of Uttar Pradesh & Anr., decided on 6.2.2018, has categorically held that a fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. Hon’ble Apex Court further held that while considering prayer for

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grant of bail, it is important to ascertain whether the accused wasparticipating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Hon’ble Apex Court has further held that if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimized, it would be a factor that a judge would need to consider in an appropriate case. The relevant paras of the aforesaid judgment are reproduced as under:

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“2. A fundamental postulate of criminal jurisprudence is the presumption of innocence, meaning thereby that a person is believed to be innocent until found guilty. However, there are instances in our criminal law where a reverse onus has been placed on an accused with regard to some specific offences but that is another matter and does not detract from the fundamental postulate in respect of other offences. Yet another important facet of our criminal jurisprudence is that the grant of bail is the general rule and putting a person in jail or in a prison or in a correction home (whichever expression one may wish to use) is an exception. Unfortunately, some of these basic principles appear to have been lost sight of with the result that more and more persons are being incarcerated and for longer periods. This does not do any good to our criminal jurisprudence or to our society.

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3. There is no doubt that the grant or denial of bail is entirely the discretion of the judge considering a case but even so, the exercise of judicial discretion has been circumscribed by a large number of decisions rendered by this Court and by every High Court in the country. Yet, occasionally there is a necessity to introspect whether denying bail to an accused person is the right thing to do on the facts and in the circumstances of a case.

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4. While so introspecting, among the factors that need to be considered is whether the accused was arrested during investigations when that person perhaps has the best opportunity to tamper with the evidence or influence witnesses. If the investigating officer does not find it necessary to arrest an accused person during investigations, a strong case should be made out for placing that person in judicial custody after a charge sheet is filed. Similarly, it is important to ascertain whether the accused was participating in the investigations to the satisfaction of the investigating officer and was not absconding or not appearing when required by the investigating officer. Surely, if an accused is not hiding from the investigating officer or is hiding due to some genuine and expressed fear of being victimised, it would be a factor that a judge would need to consider in an appropriate case. It is also necessary for the judge to consider whether the accused is a first-time offender or has been accused of other offences and if so, the nature of such offences and his or her general conduct. The poverty or the deemed indigent status of an accused is also an extremely important factor and even Parliament has taken notice of it by incorporating an Explanation to Section 436 of the Code of Criminal Procedure, 1973. An equally soft approach to incarceration has been taken by Parliament by inserting Section 436A in the Code of Criminal Procedure, 1973. 5. To put it shortly, a humane attitude is required to be adopted by a judge, while dealing with an application for remanding a suspect or an accused person to police custody or judicial custody. There are several reasons for this including maintaining the dignity of an accused person, howsoever poor that person might be, the requirements of Article 21 of the Constitution and the fact that there is enormous overcrowding in prisons, leading to social and other problems as noticed by this Court in In Re-Inhuman Conditions in 1382 Prisons.

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Needless to say object of the bail is to secure the

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attendance of the accused in the trial and the proper test to be applied in the solution of the question whether bail should be granted or refused is whether it is probable that the party will appear to take his trial. Otherwise, bail is not to be withheld as a punishment. Otherwise also, normal rule is of bail and not jail. Court has to keep in mind nature of accusations, nature of evidence in support thereof, severity of the punishment which conviction will entail, character of the accused, circumstances which are peculiar to the accused involved in that crime.

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The Hon’ble Apex Court in Sanjay Chandra versus Central Bureau of Investigation ( 2012)1 Supreme Court Cases 49; held as under:-

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“ The object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it can be required to ensure that an accused person will stand his trial when called upon. The Courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty. Detention in custody pending completion of trial could be a cause of great hardship. From time to time, necessity demands that some unconvicted persons should be held in custody pending trial to secure their attendance at the trial but in such cases, “necessity” is the operative test. In India , it would be quite contrary to the concept of personal liberty enshrined in the Constitution that any person should be punished in respect of any matter, upon which, he has not been convicted or that in any circumstances, he should be deprived of his liberty upon only the belief that he will tamper

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with the witnesses if left at liberty, save in the most extraordinary circumstances. Apart from the question of prevention being the object of refusal of bail, one must not lose sight of the fact that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of former conduct whether the accused has been convicted for it or not or to refuse bail to an unconvicted person for the propose of giving him a taste of imprisonment as a lesson.”

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In Manoranjana Sinh Alias Gupta versus CBI 2017 (5)

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SCC 218, The Hon’ble Apex Court has held as under:-

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“ This Court in Sanjay Chandra v. CBI, also involving an economic offence of formidable magnitude, while dealing with the issue of grant of bail, had observed that deprivation of liberty must be considered a punishment unless it is required to ensure that an accused person would stand his trial when called upon and that the courts owe more than verbal respect to the principle that punishment begins after conviction and that every man is deemed to be innocent until duly tried and found guilty. It was underlined that the object of bail is neither punitive or preventive. This Court sounded a caveat that any imprisonment before conviction has a substantial punitive content and it would be improper for any court to refuse bail as a mark of disapproval of a conduct whether an accused has been convicted for it or not or to refuse bail to an unconvicted person for the purpose of giving him to taste of imprisonment as a lesson. It was enunciated that since the jurisdiction to grant bail to an accused pending trial or in appeal against conviction is discretionary in nature, it has to be exercised with care ad caution by balancing the valuable right of liberty of an individual and the interest of the society in general. It was elucidated that the seriousness of the charge, is no doubt one of the relevant considerations while examining the application of bail but it was not only the test or the factor and the grant or denial of

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such privilege, is regulated to a large extent by the facts and circumstances of each particular case. That detention in custody of under trial prisoners for an indefinite period would amount to violation of Article 21 of the Constitution was highlighted.”

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The Hon’ble Apex Court in Prasanta Kumar Sarkar v. Ashis Chatterjee and Another (2010) 14 SCC 496, has laid down the following principles to be kept in mind, while deciding petition for bail:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;

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(ii) nature and gravity of the accusation;

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(iii) severity of the punishment in the event of conviction;

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(iv) danger of the accused absconding or fleeing, if released on bail;

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(v) character, behaviour, means, position and standing of the accused;

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(vi) likelihood of the offence being repeated;

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(vii) reasonable apprehension of the witnesses being influenced; and

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(viii) danger, of course, of justice being thwarted by grant of bail.

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In view of the aforesaid discussion as well as law laid down by the Hon’ble Apex Court, bail petitioners have carved out a case for grant of bail, accordingly, the petitions are allowed and the petitioners are ordered to be enlarged on bail in aforesaid FIR, subject to their furnishing personal bond in the sum of Rs. 2,00,000/- each with two local sureties, in the like amount to the satisfaction of concerned Chief Judicial Magistrate/trial Court, with following conditions:

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a. They shall make themselves available for the purpose of interrogation, if so required and regularly attend the trial Court on each and every date of hearing and if prevented by any reason to do so, seek exemption from appearance by filing appropriate application;

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b. They shall not tamper with the prosecution evidence nor hamper the investigation of the case in any manner whatsoever;

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c. They shall not make any inducement, threat or promises to any person acquainted with the facts of the case so as to dissuade him/her from disclosing such facts to the Court or the Police Officer; and

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d. They shall not leave the territory of India without the prior permission of the Court.

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It is clarified that if the petitioners misuse the liberty or violate any of the conditions imposed upon them, the investigating agency shall be free to move this Court for cancellation of the bail.

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Any observations made hereinabove shall not be construed to be a reflection on the merits of the case and shall remain confined to the disposal of this application alone. The petitions stand accordingly disposed of.

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Learned counsel for the petitioners is permitted to produce copy of order downloaded from the High Court website before the concerned authority, who shall not insist for certified copy of the order, however, it may verify the order from the High Court website or otherwise.

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(Sandeep Sharma) Judge

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3^rd August, 2022 (reena)

Kamlesh Kumari v. State of Hp

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Kamlesh Kumari v. State of Hp

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