Rekha Devi vs State Of Himachal Pradesh

.

Vivek Singh Thakur, J

Petitioner has approached this Court, invoking provisions of Section 438 of Cr.P.C, seeking anticipatory bail in case FIR No. 45 of 2021 dated

16.5.2021 registered in Police Station Talai, District Bilaspur, H.P., under Sections 341,302,323,504,506 and 34 of Indian Penal Code ( (hereinafter

referred to as ‘IPC’ in short).

Status report stands filed. After perusal of record produced in the Court, photocopies of relevant documents were retained.

Facts, emerging from the status report as well as documents and the material produced before the Court, are that on 14.5.2021 at about 10.39 a.m.,

Satya Devi alongwith her husband deceased Nikku Ram had submitted a written complaint in Police Station Talai, stating therein that her brother-in-

law and sister-in-law (dever and devrani) had beaten her husband with further averments that when her husband was standing in his fields then

suddenly her brother-in-law alongwith his family had beaten her husband and had given a blow of some sharp object on his head. The said complaint

was entered in Daily Diary report bearing G.D No.010 dated 14.5.2021 and Nikku Ram (now deceased) was sent alongwith Head Constable to Civil

Hospital, Shahtalai for medical check-up.

On the same day, i.e 14.5.2021, Medical Officer, Civil Hospital Berthin, had informed the police telephonically that one Phula Devi, aged 50 years,

resident of Malangan had been brought for treatment in a case of fighting, whereupon MHC, Police Station had informed Sub Inspector Ram Kumar

about the said information with request to obtain MLC from the Civil Hospital Berthin, whereupon Sub Inspector alongwith police officials rushed to

the Civil Hospital where Phula Devi presented a complaint stating therein that when she had objected removal of tile and wooden planks by her

brother-in-law ( jeth) Nikku Ram, her brother-in-law (jeth) had beaten her at about 7.30 a.m. by pulling her from her hairs and dragging to the place

where bricks were stacked and further that he had also beaten her by giving fist blows in her stomach and causing injuries in her left arm and legs etc.

and on raising alarm by her, her sister Bhaga Devi, Manisha, Suman etc. came on the spot and rescued her from the clutches of her jeth. The said

complaint was also entered in the Daily Diary of Police Station at G.D No.014 dated 14.5.2021 at 1.38 p.m. Phula Devi was also subjected to medical

examination.

On 16.5.2021, Praveen Kumar son of Nikku Ram (deceased) had submitted a written complaint in Police Station Shahtalai stating therein that he

had been serving in Transport Sector at Delhi and on 14.5.2021 at about 7.35 a.m. his mother had informed him telephonically that when his father

was helping his grand son to pass stool in own gali near his bathroom he had been restrained and injured by Phula Devi, Bhaga, Amit and Rekha and

they tried to kill him by causing two injuries in his head with sharp object and had also abused him whereupon he alongwith his family, in his own

vehicle reached home in the evening of 15.5.2021 and came to know that his father had been referred for treatment to I.G.M.C. Shimla and when he

was trying to make arrangements of money for treatment of his father, Police Officer visited his house to whom he had submitted the complaint. The

complaint made by Praveen Kumar was also entered in Daily Diary at G.D No. 024 dated 16.5.2021 at 8.46 p.m.

In Medico Legal Examination of Nikku Ram, Medical Officer has reported two injuries on his head which are as under:

i)“ Lacerated wound 2x2 in cm. on ParietialRegion’ ii)Lacerated wound 3x2cm on left temporal Regionâ€​

As per status report, Nikku Ram was referred from CHC Talai to Medical College Hamirpur, wherefrom he was referred to IGMC, Shimla on the

very same day i.e 14.5.2021, where in emergency he was subjected to neurosurgery on the same day during night by Neuro Surgeon. On 17.5.2021,

Medical Officer, I.G.M.C. Shimla had given opinion that Nikku Ram would not be fit for statement for two weeks. It is further stated in the status

report that orally Medical Officer had opined that head injury to Nikku Ram was dangerous to his life with further information that Nikku Ram was

Corona positive.

On the basis of C.T (Head) report, Medical Officer, Civil Hospital Talai had opined that head injury suffered by Nikku Ram was grievous in nature,

whereupon Section 307 was added in the case.

On 23.5.2021, Nikku Ram had expired in I.G.M.C Shimla, whereupon police had approached the Department of Forensic Medicine, I.G.M.C

Shimla on 24.5.2021 to obtain post mortem report of Nikku Ram to ascertain the cause of death. However, the team of Doctors of Department of

Forensic Medicine had given in writing which reads as under:

“ As per the “standard guidelines for Medico-Legal Autopsy in Covid-19 deaths in India issued by ICMR, in cases where there is no doubt

regarding the cause of death in Covid-19 positive cases, autopsy is not recommended. The case summary report of the deceased may be obtained

from Neurosurgery / Isolation ward. However, minimal invasive atopsy was conducted as per SCMR guidelines.â€​

On the basis of minimal invasive atopsy, Department of Forensic Medicine had opined that the cause of death in this case is ‘extraodural

hemotoma post craneotorny with severe Covid-19 pneumonia.’

On the basis of record, opinion of Medical Officer, CHC Talai is as under:

“On 23.05.2021 the patient was declared dead at 9.40 a.m at IGMC Shimla the patient was admitted in IGMC Shimla on 14.05.2021 and was RAT

positive. There the death of the patient was from extradural hematoma post craniotomy with severe Covid 19 pneumonia.â€​

In MLC of Phula Devi, following injuries/observations have been noted by the concerned Medical Officer:

“Abrasion over left elbow, swelling (+) Pain(+)left side Hip joint, pain (+) swelling (+) over right side scopularregion, pain(+) tenderness (+) (+) all

over abdomen, pain & swelling (+) left side rib, No organomegoly seen , Tenderness (+) (+), No interial injury (+)â€​

Allegations as per status report against the petitioner are that in the incident, she had given fist and slap blows to the deceased. Co-accused Phula

Devi, Bhago Devi and Amit were arrested under Section 307 I.P.C on 19.5.2021 and since then they are in judicial custody. Fourth accused is

petitioner.

As per status report petitioner has joined the investigation time to time. It is also stated in the status report that grant of bail to the petitioner may

cause public unrest and there may be possibility of threatening the witnesses because deceased was taya sasur of petitioner and being member of one

family possibility of aggravation of family dispute is also there.

Learned counsel for the petitioner has submitted that it is evident from the MLCs of deceased Nikku Ram and Co-accused Phula Devi that Phula

Devi had received number of injuries, whereas deceased was having only two injuries which may have been caused to him during scuffle when he

was dragging Phula Devi , when Phula Devi had tried to save herself and her family members had rescued her from the clutches of deceased Nikku

Ram. He has further stated that there is no written opinion of any Medical Officer that Nikku Ram had died on account of head injuries suffered by

him. From the report of Department of Forensic Medicine , I.G.M.C. Shimla and also opinion rendered by Medical Officer CHC, after going through

the record, main cause of death is Covid-19 Pneumonia, whereas learned Deputy Advocate General has submitted that cause of death was not only

Covid-19 pneumonia but extradural hematoma post craneotony with severe Covid-19 pneumonia and, therefore, according to Deputy Advocate

General, petitioner as well as other co-accused are liable to be charged for murder and,thus, petitioner does not deserve to be enlarged on bail.

Learned counsel for the petitioner has further submitted that petitioner is young lady of 25 years and even if case of complainant party and

prosecution is considered to be true as it is, then also, role of petitioner is very limited as it would not have been possible to cause two injuries in the

head of deceased Nikku Ram with hand and fist blows, particularly when these injuries have been found to be caused by sharp object. It is further

submitted on behalf of the petitioner that on comparison of injuries caused to deceased Nikku Ram and Phula Devi, as reported in MLCs, it is evident

that victim is accused party but not the complainant party. However, for unfortunate death of Nikku Ram, aggressor is now being treated as

complainant, whereas sufferer party is being treated as accused party.

It is also contended on behalf of the petitioner that in the report made at first instance by Satya Devi, wife of deceased Nikku Ram, the incident

had taken place when Nikku Ram was standing in his own fields and suddenly accused party had attacked deceased Nikku Ram causing injuries in his

head with some sharp object, whereas Praveen Kumar son of Nikku Ram on 16. 5.2021 has given another version to the police stating that it was

informed by his mother i.e Satya Devi to him on 14.5.2021. It is also contended that Satya Devi and Nikku Ram had visited the Police Station and at

that time Nikku Ram was in good condition and only two injuries were noticed by the Medical Officer on his body, whereas Phula Devi, instead of

going to the police, had gone to the hospital for her treatment and therefore, report on her behalf, which was submitted by her to police on approaching

by police in hospital after receiving information about her through Medical Officer, was recorded in daily diary report lateron after 1.38 p.m.

Keeping in view different versions by the complainant party about the incident and also number of injuries received by Phula Devi in comparison to

Nikku Ram and possibility of cause of death of Nikku Ram is Covid-19 positive pneumonia coupled with the fact that petitioner is 25 years old young

lady, learned counsel for the petitioner has submitted that petitioner deserves to be enlarged on bail.

Learned counsel for the petitioner has further submitted that in view of role of the petitioner in the incident as alleged by the prosecution and

provisions of section 437 Cr.P.C., petitioner deserves to be enlarged on bail, as Section 437 Cr.P.C contains provisions to treat a person, under the age

of 16 years or a woman or sick or infirm person, in different manner than others and empowers the Court to release such person on bail in those cases

also wherein, in normal circumstances, others may not be released.

It is also submitted on behalf of the petitioner that petitioner is ready to furnish surety to the satisfaction of the Court and also undertakes to abide

by all conditions that may be imposed by the Court for enlarging her on bail.

After taking into consideration the principles and factors necessary to be considered, as propounded by the Supreme Court in various judgments, at

the time of deciding the bail applications as well as cumulative effect of facts and circumstances placed before me in the petition and submissions

made by rival parties but without commenting on merits of the evidence, I find that it is a fit case to enlarge the petitioner on bail at this stage.

Accordingly, present petition is allowed and petitioner is directed to be enlarged on bail and interim bail granted on 31.05.2021 is confirmed, subject

to furnishing personal bond in the sum of `50,000/- with one surety in the like amount, to the satisfaction of the trial Court, within three weeks from

today, upon such further conditions as may be deemed fit and proper by the trial Court, including the conditions enumerated hereinafter, so as to

ensure the presence of petitioner/accused at the time of trial and also subject to following conditions:-

(i) That the petitioner shall make herself available to the police or any other Investigating Agency or Court in the present case as and when required;

(ii) that the petitioner shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as

to dissuade her from disclosing such facts to Court or to any police officer or tamper with the evidence. She shall not, in any manner, try to overawe

or influence or intimidate the prosecution witnesses;

(iii) that the petitioner shall not obstruct the smooth progress of the investigation/trial;

(iv) that the petitioner shall not commit the offence similar to the offence to which she is accused or suspected;

(v) that the petitioner shall not misuse her liberty in any manner;

(vi) that the petitioner shall not jump over the bail;

(vii) that in case petitioner indulges in repetition of similar offence(s) then, her bail shall be liable to be cancelled on taking appropriate steps by

prosecution;

(viii) that the petitioner shall not leave the territory of India without prior permission; and

(ix) that the petitioner shall inform the Police/Court her contact number and shall keep on informing about change in address and contact number, if

any, in future.

It will be open to the prosecution to apply for imposing and/or to the trial Court to impose any other condition on the petitioner as deemed

necessary in the facts and circumstances of the case and in the interest of justice and thereupon, it will also be open to the trial Court to impose any

other or further condition on the petitioner as it may deem necessary in the interest of justice.

In case the petitioner violates any condition imposed upon her, her bail shall be liable to be cancelled. In such eventuality, prosecution may

approach the competent Court of law for cancellation of bail, in accordance with law.

Trial Court is directed to comply with the directions issued by the High Court, vide communication No.HHC.VIG./Misc. Instructions/93-IV.7139

dated 18.03.2013.

Observations made in this petition hereinbefore, shall not affect the merits of the case in any manner and are strictly confined for the disposal of

the bail application.

Petition is disposed of in aforesaid terms.

Copy dasti.

Petitioner is permitted to produce a copy of this judgment, downloaded from the web- page of the High Court of Himachal Pradesh, before the

authorities concerned, and the said authorities shall not insist for production of a certified copy but if required, may verify it from Website of the High

Court.