Kunal Chatterji Vs State of Hp

For the respondent : M/s. R. S. Verma, Y.P.S. Dhaulta, Dalip K. Sharma & L.N. Sharma, Additional Advocates General and Mr. Sikander Bhushan, Dy. Advocate General.

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Jyotsna Rewal Dua, Judge

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FIR No. 218 of 2021 was registered against the petitioner on 13.08.2021 at Police Station Sunder Nagar, District Mandi, H.P. The petitioner is accused therein of offences punishable under Sections 302, 307, 323 and 449 of the Indian Penal Code. He is seeking regular bail in this petition.

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1 Whether reporters of Local Papers may be allowed to see the judgment? Yes.

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2. Prosecution case against the petitioner is:-

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2(i) Upon receipt of a telephonic information at around 11:08 p.m. on 12.08.2021, about an assault upon a lady, the police reached the described spot at Bhojpur market in Sunder Nagar. Ramnik Kaur, aged 24 years, alongwith her family members was present at the spot. She gave her statement under Section 154 Cr.P.C. The gist of her statement was:-

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i) The complainant resided at Sunder Nagar alongwith her family members consisting of her father – a cloth merchant, mother, grand-mother and a physically disabled & mentally infirm paternal aunt.

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ii) Complainant was a student of BDS 2^nd Year at Dental College Sunder Nagar. Kunal Chatterji (present petitioner) resident of Jharkhand was also studying in the same college and class with her. She was acquainted with him and used to speak to him. Petitioner started harassing the complainant and tried to come closer to her in January, 2021. Complainant rebuffed his attempts but he did not relent. She brought this to the notice of her parents who in turn complained against him to the Vice Principal of the college.

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iii On 12.08.2021, the petitioner met the complainant in the college and requested her to talk to him. The complainant refused to oblige him. The same day, petitioner again intercepted the complainant while

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she was returning from college. The same episode happened. The petitioner pleaded with the complainant to speak to him, but she refused.

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At around 8 p.m. that very day the complainant was at her home. Her father had gone to drop off her mother at Bilaspur. Main gate of her house was left open as her father had to return. Door of her room was also open. She was using her mobile phone when at around 9.30 / 9.45 p.m. petitioner came barging in her room holding a pickaxe. The complainant got frightened seeing him in her room. The petitioner kept saying that the complainant was going to be very happy; He caught her from the neck & tried to strangulate her; In an effort to escape, the complainant gave him a leg blow; Petitioner inserted his finger in her mouth; Complainant bit his finger and calling for help ran towards the balcony; Petitioner also ran away; From balcony, the complainant saw Mandeep @ Montu going on the road and summoned him for help. Mandeep Singh @ Montu, Suresh @ Babbu and Balwinder Sodhi also came inside the house; In their presence the complainant opened the door of her grand-mother’s room and found her unconscious and bleeding. With help of neighbours, she was rushed to hospital. The complainant later came to know that her grandmother had died.

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iv) The petitioner had murdered complainant’s grandmother with pickaxe. He also tried to kill the

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complainant by strangulating her & by putting his finger in her mouth.

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On the basis of above statement, FIR was registered against the petitioner for commission of offences under Sections 302, 307, 323 & 449 IPC at Police Station Sunder Nagar, Distt. Mandi, H.P.

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2(ii) The grand-mother of the complainant was declared brought dead by the Medical Officer at Civil Hospital Sunder Nagar. Following injuries were noticed on her body:-

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“There is depressed fracture left frontal bone 2.5 X 1.5 cm with chip of frontal bone lying outside entangled to scalp hair. There is depressed fracture of orbital floor walls with eyeball missing on (L) side. There is deep wound on (L) side of neck measuring 6X5 cm, it was lacerated wound with torn carotid sheath & neurovascular bundle. It was located in between Sternocleidomastoid & Traperious muscle.”

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The cause of death according to the post mortem report was “Coma & Syncope due to tethered neurovascular bundle around cervical region of neck” .

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2(iii) The Medical Officer gave following description of injuries upon the complainant in the MLC:-

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“1. Tenderness on spine area

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2. Patterned abrasion over neck

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3. Bite mark over cheek

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4. Abrasions over under surface of tongue.”

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Injuries were opined to have been inflicted upon her in

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past less than 24 hours.

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2(iv) Investigations ensued. During investigation:-

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2(iv)(a) A Knife (length 34 cm, handle length 13.8 cm & sharp edge length 20.2 cm) was recovered from the bathroom of the first floor of the house of the complainant. Complainant’s room was also on the first floor of the house. The door lock handle of her room appeared to have been removed forcefully. A blood stained and hair splattered pickaxe was produced by the complainant from her room. 2(iv)(b) Blood stained clothes etc. were recovered from the room of the deceased. Clothes worn by the complainant at the time of the incident were also taken into possession. Mobile phone used by the complainant at the time of the incident was also produced by her and taken into possession by the police.

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2(iv)(c) The police also found during investigation that CCTV cameras had been installed in the complainant’s house. Time of CCTV system was 14 minutes behind the actual time. The CCTV cameras showed the petitioner entering house of the complainant at 6.48 p.m. (CCTV time) wearing a white kurta pajama with a carry bag and an umbrella. The petitioner was seen entering the

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complainant’s house at the ground floor and covering the passage leading to the first floor.

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2(iv)(d) Petitioner was nabbed at a little distance from the complainant’s house by local people shortly after the incident. He was produced before the police by the local people and was arrested at 8.00 a.m. on 13.08.2021.

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2(iv)(e) During investigation, petitioner got recorded his statement under Section 27 of the Indian Evidence Act that he had gone to the complainant’s house on 12.08.2021; He had hidden his slippers, carry bag, mobile phone and the umbrella carried by him, in the complainant’s house. At his identification the police recovered a pair of slippers from underneath the fridge in the clothes store and a black umbrella lying near to it from complainant’s house. Petitioner also identified the store room near the bathroom on the ground floor of complainant’s house from where he had taken the pickaxe and also the room on the first floor where complainant’s grand mother was found lying unconscious & severely injured. Petitioner’s mobile phone lying on the magazines kept on an old trunk near the store room on ground floor of the complainant’s house was also taken into possession. The data in his mobile phone was retrieved. The data established that petitioner was holding grudges against complainant's grand-mother and held her responsible for damaging

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the relations between the two. On 12.08.2021 petitioner had made several calls & sent messages from his phone to the complainant’s phone. The police also retrieved the data from the phone used by the complainant.

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2(iv)(f) One Khem Raj produced three DVDs wherein petitioner at the time of being nabbed by local people is stated to have admitted killing complainant’s grand-mother.

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2(iv)(g) Statements of the witnesses were recorded under Section 161 Cr.P.C. The Vice Principal of the Dental College Sunder Nagar stated about complaint made to him on 02.08.2021 by the parents of the complainant against the petitioner harassing their daughter and the fact that petitioner had threatened to commit suicide in case she would not oblige him.

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3. Submissions

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3(i) Learned Senior Counsel for the petitioner strenuously urged for releasing petitioner on bail primarily on the grounds:(i) There has been suppression of facts by the prosecution and (ii) Trial in the case has been delayed.

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3(i)(a) On suppression of facts, learned Senior Counsel for the petitioner submitted that:-

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i) Conduct of the complainant, a young girl aged 24 years had been suspicious; According to prosecution

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case, her parents were not at home but she had not bolted the main gate of her house and had also left open the door to her own room. Such kind of carefree behaviour is not expected from young girls in Indian Society.

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ii) It was the complainant who had produced the pickaxe from her room before the police.

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iii) Referring to the transcript of petitioner’s audio message sent to complainant’s mobile phone, as extracted in the status report, it was contended that both were in a relationship which was not acceptable to the complainant’s grand-mother.

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iv) It was also emphasized that as per status report, petitioner had entered the complainant’s house at 7 p.m. and as per the complainant her father had left home at around 8.00 p.m., meaning thereby that complainant’s father was present when the petitioner entered the house. Referring to some injuries found on the petitioner, learned Senior Counsel for the petitioner subtly hinted that this could be on account of beatings given to him by the complainant’s father who might have been present in the house. v) Learned Counsel also submitted that petitioner having any knowledge about complainant’s parents being not at home that night, was a highly improbable fact.

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vi) Petitioner, as per prosecution case, had entered complainant’s house with a carry bag and holding an

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umbrella. He had no means to know about the masonry equipments i.e. pickaxe etc. stored in the house.

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Highlighting above inferences, learned Senior Counsel endeavoured to suggest that version presented by the prosecution is not truthful. It is tainted & suppressed with a view to cause injustice to the petitioner who has no criminal antecedents.

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3(i)(b) Learned Senior Counsel also submitted that:- trial of the case has been delayed; Petitioner was arrested on 13.08.2021; It has been about two years & ten months since his arrest but the trial is still not complete; Seventy-eight witnesses have been cited by the prosecution in the case; Trial will take long time to conclude.

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In view of above, prayer was made for enlarging the petitioner on bail. In support of the prayer, reliance was placed upon decisions rendered in Mukesh Kumar vs. State of Rajasthan & anr., SLP (Crl.) No. 011714 of 2022; Chintan Vidyasagar Yupadhyay vs. The State of Maharashta, SLP (Crl.) No. 2543 of 2021; Gurdev Singh vs. State of Himachal Pradesh, Cr.MP(M) No. 2245 of 2023; Ramesh Dhawan vs. State of Himachal Pradesh, Cr.MP(M) No. 2729 of 2022; Sarabjit vs. State of Himachal Pradesh, Cr.MP(M) No. 2406 of 2022; & Ravinder Kumar vs. State of Himachal Pradesh, Cr.MP(M) No. 378 of 2024.

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3(ii) Learned Additional Advocate General , opposing the

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bail plea submitted that:- Trial in the case is on; Prosecution has already examined forty-eight out of seventy-eight cited witnesses; Some material witnesses in the case are scheduled to be examined in case on 19^th & 20^th July, 2024 whereafter only the official witnesses would be left for examination.

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It was next submitted that:-

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 The petitioner had withdrawn his previous bail petitions. There has been no change in the circumstances to justify filing of present petition.

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 Petitioner does not deserve to be enlarged on bail more so in the facts of the case where he is accused of committing gruesome murder of an old lady and attempted murder of the complainant.

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 Submissions made by the learned Senior Counsel for the petitioner embark upon the merits of the prosecution case. It would be impermissible to consider the merits of the case in the bail petition while the trial is going on.

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In view of the above, prayer was made to dismiss the

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bail petition.

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4. Heard learned counsel on both sides and perused the record produced by the respondent.

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Accusations against the petitioner are very grave viz:(i) of murdering grand-mother of the complainant & (ii) Attempting murder of the complainant.

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For grant of bail, learned Senior Counsel of the petitioner made twofold submissions:- Firstly on the point of alleged delay in trial & secondly on the merits of the petition.

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4(i) Delay in trial:

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Contention, raised for the petitioner is that he has been in custody for almost 2 years & 10 months in the FIR that was registered on 13.08.2021; Trial is delayed; Large number of witnesses are yet to be examined by the prosecution & early completion of the trial is not in sight.

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It is not even the case of petitioner that there is any laxity on part of the prosecution in proceeding with the trial. In the given facts & circumstances of the case and considering the nature of accusations against the petitioner, merely because petitioner has spent 02 years & 10 months in confinement, the trial cannot be said to be inordinately delayed. Prosecution has cited seventy-eight witnesses. It has already examined forty-eight witnesses. Trial is

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next slated for 19^th & 20^th July, 2024 for examination of some more witnesses. Trial, therefore, has been in progress and is continuing.

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4(ii) Merits of Petition :

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4(ii)(a) Referring to investigation carried out by the respondent, learned Senior Counsel for the petitioner has highlighted certain areas where according to him prosecution has been guilty of suppressing the facts in order to wrongfully nail the petitioner. Some of these facts as highlighted by the learned Senior Counsel are :-

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Conduct of the complainant as to why she had left the main gate of the house and door of her room open when she knew that her father was not at home; Highlighting that petitioner/accused had never visited the complainant’s house earlier, it was submitted that he cannot be expected to have acquired knowledge that complainant’s parents won’t be at home at that time or about different locations in the complainant's house. On the basis of CCTV footage showing the petitioner entering the complainant’s house at about 6.48 p.m. and the stated time of complainant’s father leaving the home at around 8 p.m., learned Senior Counsel tried to build a contention that complainant’s father was actually at home when petitioner entered

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the house. An inference was made that beatings on the person of the petitioner could have been given by the complainant’s father.

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By pointing out above facts it was urged that prosecution has suppressed true facts in the case and on that count, the petitioner who has spent about 02 years & 10 months in custody is entitled to bail.

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4(ii)(b) Several facets of the case are required to be looked into while adjudicating a bail petition. Guiding principles have been well settled by the Hon’ble Apex Court. Reference to them has been made in Deepak Yadav vs. State of Uttar Pradesh & anr.² Some relevant paragraphs from the judgment are extracted hereinafter:-

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“22. As reiterated by the two-Judge Bench of this Court in Prasanta Kumar Sarkar Vs. Ashis Chatterjee³ it is wellsettled that the factors to be borne in mind while considering an application for bail are:

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(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (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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3 (2010) 14 SCC 496

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2 (2022) 8 SCC 559

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(vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.”

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“25. For grant or denial of bail, the “nature of crime” has a huge relevancy. The key consideration which govern the grant of bail were elucidated in the judgment of this Court in Ram Govind Upadhyay Vs. Sudarshan Singh⁴ wherein it has been observed as under: -

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“4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:

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(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.

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(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.

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(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.

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(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.”

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4 (2002) 3 SCC 598

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“26. Similarly, the parameters to be taken into consideration for grant of bail by the courts has been described in Kalyan Chandra Sarkar Vs. Rajesh Ranjan⁵ as under : -

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“11. The law in regard to grant or refusal of bail is very well-settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

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(a) The nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

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(b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the court in support of the charge.”

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“39. There is certainly no straight jacket formula which exists for courts to assess an application for grant or rejection of bail but the determination of whether a case is fit for the grant of bail involves balancing of numerous factors, among which the nature of the offence, the severity of the punishment and a prima facie view of the involvement of the accused are important. This Court does not, normally interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is

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5 (2004) 7 SCC 528

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equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with basic principles laid down in a catena of judgments by this Court.”

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While turning down High Court’s order of grant of bail to a person accused of offences punishable under Section 32 read with Section 34 of the Indian Penal Code and Section 3 read with Sections 25 & 27 of the Arms Act, Hon’ble Supreme Court in its decision dated 24.07.2023 rendered in Rohit Bishnoi vs. The State of Rajasthan & anr., SLP (Crl.) No. 8935 of 2023 held that ‘liberty of an individual is an invaluable right. But at the same time while considering an application for bail, Courts cannot lose sight of serious nature of accusations against an accused and the facts that have bearing on the case, particularly, when the accusations may not be false, frivolous or vexatious in nature but are supported by adequate material brought on record so as to enable a Court to arrive at a prima facie conclusion with due regard to vital facts of the case brought on record. Due consideration must be given to facts suggestive of the nature of crime, criminal antecedents of accused, if any and nature of punishment that would follow a conviction vis-a-vis the offence(s) alleged against an accused’.

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4(ii)(c) In my considered view, even if it is assumed that there is lot more than what meets the eye as has been contended for the petitioner then also certain glaring facts which at this time of adjudication of bail petition cannot be ignored are that:-

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 Complainant had brought to her parents notice petitioner’s unwanted advances towards her, his threats of commission of suicide & the consequent harassment she faced. Her parents in turn had complained about these facts to the Vice Principal of the college concerned on 02.08.2021.

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 Petitioner who had no business to enter the complainant’s house was inside her house on 12.08.2021. His movements have statedly been captured in the CCTV system installed in the complainant’s house. He has been seen entering complainant’s home at around 7.15/7.30 p.m. on 12.08.2021 carrying an umbrella, mobile phone and a carry bag.

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 Petitioner in his statement under Section 27 of the Indian Evidence Act has statedly admitted going to complainant’s house and concealing his articles there.

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He also identified the place from where he took the pickaxe & the room of complainant’s grand-mother.

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 On the basis of petitioner’s identification his mobile phone, slippers and umbrella were recovered by the police from complainant’s house.

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 The video recording made by the local people who apprehended the petitioner while he was attempting to run away statedly shows the petitioner admitting his guilt and that he had killed complainant’s grand-mother.

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4(ii)(d) Liberty even of a person charged with crime is important but this fact has to be adjudged & compared with weight of other well defined parameters laid down by the Hon’ble Apex Court for exercise of judicious & cautious discretion. Each case is to be considered & weighed in light of facts involved in it. Though elaborate discussion of evidence is to be avoided, however, in the instant case, prima facie consideration of prosecution case reflects:Parents of the complainant had lodged a complaint against the petitioner, to the Vice Principal of the College on 2.08.2021; The CCTV cameras installed in complainant’s home are stated to have footage of the petitioner entering complainant’s home at night time on 12.08.2021 and moving around suspiciously; Petitioner had no

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business to be in complainant’s home; On being nabbed by local people, petitioner in a recorded video has statedly confessed to his crime; At petitioner's identification, his mobile phone, umbrella & slippers were recovered from complainant’s home; Petitioner also stately identified the place in complainant’s home from where he took the pickaxe as also the room where he killed complainant’s grand-mother; Petitioner’s audio messages’ transcript hints at strong grudges he had against complainant’s grand-mother. Prima facie, the evidence establishes involvement of the petitioner in the crime. Accusations levelled against him cannot be said to be figment of imagination or frivolous. The evidence collected by the prosecution, at this stage, points out intricate complicity of the petitioner in the commission of crime. I have also considered the record produced by the respondents as also the statements of some of witnesses already recorded during the ongoing trial. In depth reference to evidence is being avoided lest it causes prejudice to the case of either side. Though the above are aspects to be gone into during trial, the admissibility and relevance of the evidence etc. is to be adjudged by the learned Trial Court, however these at this stage are sufficient to deny bail to the petitioner. As observed earlier, instant is also not a case where there has been any inordinate delay in trial. Trial in the case is in progress.

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Given the seriousness of allegations levelled against the petitioner; nature of crime alleged against him; the mode & manner of commission of offence; the evidence collected and investigation carried out by the prosecution; punishment that might be imposed; in my view petitioner does not deserve to be enlarged on bail.

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5. Taking all the aforesaid facts into consideration, without expressing any opinion on the merits, the present petition is dismissed.

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Any observation made herein above shall not be taken as an expression of opinion on the merits of the case. Learned Trial Court shall decide the matter uninfluenced by any observation made herein above.

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Petition stands disposed of.

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Jyotsna Rewal Dua Judge.

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June 10 , 2024 (PK)

Kunal Chatterji v. State of Hp

Case brief

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Kunal Chatterji v. State of Hp

Case brief

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