Mohammad Arif vs State Of Himachal Pradesh

Anoop Chitkara, J

The petitioner, incarcerating upon his arrest, for allegedly committing murder of an old woman aged about 70 years, has come up before this Court

under Section 439 of CrPC, seeking regular bail, on the grounds that co-accused was granted bail by this Court and on parity he is also entitled to the

same.

A perusal of the petition reveals that the petitioner straightaway filed the bail petition before High Court, which is permissible given the decision of a

three Judges Bench of HP High Court, in Mohan Lal v Prem Chand, AIR 1980 HP 36, (Para 9 & 15), wherein the Full bench holds that a person can

directly apply for an anticipatory bail or regular bail to the High Court without first invoking the jurisdiction of the Sessions Judge.

The bail petition is silent about criminal history, however, Mr. Manoj Pathak, Learned Counsel for the bail petitioner states on instructions that the

petitioner has no criminal past relating to the offences prescribing sentence of seven years and more, or when on conviction, the sentence imposed

was more than three years. The status report also does not mention any criminal past of the accused.

Briefly, the allegations against the petitioner are that on 15.8.2019, complainant Smt. Surjani Devi, informed the police that her mother Smt. Rampati

aged about 70 years, resided alone in Chirgaon. She stated that her younger sister informed her that Phone of her mother is responding with message

‘Phone Switched off’. On this, at around 5:15 p.m., she went to her room to inquire about her well being. The door of her room was bolted from

outside and sound of television was audible from inside. On opening the door, she found her mother to have been strangulated. She also noticed that

her ornaments were missing. On the basis of this information, police recorded her statement under Section 161 Cr.P.C. leading to registration of the

aforesaid FIR.

After that on 16th August, 2019, the police sent the body of Rampati for postmortem to IGMC, Shimla. Vide postmortem report No.2/2019, the

Forensic Medicine Expert opined that the cause of death was asphyxia due to strangulation. This report was given under the seal and signature of Dr.

Peeyush Kapila, Associate Professor at IGMC, Shimla.

The police swung into action and recorded the statement of one occupant of the building, namely Suraj, a young boy of 19 years. He stated that at

10:30 a.m., three young persons had visited the building and had demanded keys of the room of Mushtaq Ahmad from Rampati. He stated that out of

those three persons, two were well known to him. He named Mohd. Arif, R/o Bilaspur (petitioner herein) and second one Imran Khan, R/o

Sundernagar, District Mandi. He stated that he did not know the name of 3rd person, but he could recognize him. After that, they had entered into

arguments with Rampati and were demanding keys, however, Rampati had refused to handover keys to them. He further stated that at 12:00 noon or

1:00 p.m., the sound of television was audible from the room of Rampati. At 5:30 p.m., he came to know from her daughter that Rampati had been

murdered. This young boy, Suraj stated that he knows the two persons very well and he could recognize the 3rd persons as well.

After the police got CCTV footage and showed the photographs to Suraj he identified the 3 rd person. Subsequently, the police splashed the

photographs to entire area and consequently at Ghanahatti, the police detained these three persons from HRTC bus which was en- routed from

Sarahan to Chintpuri. A Daily Diary No.6 dated 16.8.2019, was entered at 2:48 a.m.

After that, accused Arif Mohd. made a disclosure statement under Section 27 of the Evidence Act, which led to recovery of stolen ornaments

which he had concealed under the seat of the HRTC bus.

The accused Mohit Khan, vide statement dated 19.8.2019, showed to the police the building of Rampati and the place where he was standing at the

time of alleged incident. He also disclosed to the police that Mohd. Arif and Imran Khan had entered into the room of Rampati and had closed the

door. After sometime, both of them came out and bolted the door and came down.

Ld. Counsel for the petitioner contends that the incarceration before the proof of guilt would cause grave injustice to the petitioner and family.

On the contrary, the State contends that the Police have collected sufficient evidence against the bail petitioner and the co-accused. Another

argument on behalf of the State is that the crime is heinous, the accused is a risk to law-abiding people, and bail might send a wrong message to

society.

REASONING:

The reasoning, while granting bail to the co-accused in Cr.MP(M) No.1975 of 2019, titled Mohit Khan vs. State, is no manner applicable to the

present petitioner, against whom there is ample evidence. Further reference to the petition also reveal that there are no grounds on which he is entitled

to bail. As such, he has failed to make out a case for bail.

Ld. Counsel for the petitioner referred to certain statements and memos from the police report, prepared under section 173(2) CrPC, copies of

which the accused had duly received in compliance to S. 207 CrPC. However, the documents which the Ld. Counsel referred were neither filed with

the petition, nor its copies have been supplied to the Court and the State. Thus, the Court cannot base any finding on a document which is in the

Counsel's brief and not on the Court's file.

Counsel for the petitioner has also made several other arguments. Still, given that this Court is not inclined to grant bail, on the reasons mentioned

above, discussion of the same will be an exercise in futility. Any detailed analysis of the evidence may prejudice the case of the prosecution or the

accused.

Given above, in the facts and circumstances peculiar to this case, at this stage, the petitioner fails to make out a case for bail. The petition is

dismissed with liberty to file a new bail application.

Any observation made hereinabove is neither an expression of opinion on the merits of the case, nor shall the trial Court advert to these comments.

The petition is dismissed.