IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.MP(M) No.60 of 2008. Date of decision: 7.3.2008. Sumeer Sood ………. Petitioner Vs. State of H.P. ..…. Respondent Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Petitioner : Mr. M.S. Guleria , Advocate. For the Respondent Mr. A.K. Bansal, Additional Advocate General. Kuldip Singh, Judge. (Oral) 1. Heard. 2. This is an application under Section 439 Cr.P.C. for releasing the petitioner on bail in FIR No.135 of 2007 dated 23.10.2007, registered at Police Station, Baijnath under Sections 302, 498-A IPC. Notice was issued on 1.2.2008 to the respondent. Status report has been filed by the learned Addl. Advocate General and he has also placed on record a copy of challan, in FIR No.135 of 2007 in the Court which has already been submitted in the Court below 3. The learned counsel for the petitioner has submitted that petitioner is innocent. He has been falsely implicated in the case. The petitioner and deceased Anuradha had contracted a love marriage and they were enjoying a happy married life. The parents of the deceased were not Whether the reporters of the local papers may be allowed to see the Judgment?Yes 2 happy with the marriage. Anuradha was serving in police department and petitioner is also serving police depaprtment. The petitioner earlier filed bail application which was not contested as the report of Forensic Science Laboratory was not received at that time. The petitioner filed again bail application which has been rejected by learned Sessions Judge, Kangra at Dharamshala on 14.1.2008. 4. It has been submitted on behalf of the petitioner that the petitioner has five years old son and an old mother. The postmortem report of the deceased discloses no external injuries which suggest deceased might have taken poison to put an end to her life for reasons best known to her. It has been submitted that after completion of the investigation challan has already been filed in the trial Court, prayer for releasing the petitioner on bail has been made through the application. The learned Addl. Advocate General has opposed the bail application and has submitted that the involvement of the petitioner for the commission of offence has been established during investigation and challan has already been submitted in the Court. The conduct of the petitioner also points out his involvement in the commission of the offence. 5. The prosecution case through report under Section 173 Cr.P.C. is that on 23.10.2007 at about 4.40 P.M. mother of constable Anuradha on telephone informed the Police Station, Baijnath that Anuradha has died due to poisoning. On this S.I./SHO Rameshwar Thakur and other officials went to the house of Anuradha where her dead body was lying inside the house. Statement of Smt. Daya Kumari mother of deceased Anuradha was recorded under Section 154 Cr.P.C. and on that basis an FIR No.135 of 2007 was registered. Smt. Daya Kumari has stated that after 4-5 years of the marriage of Anuradha her husband Sameer Sood petitioner started maltreating her. About two years ago Anuradha told her on telephone that 3 she has consumed poison. On this she along with others went to the house of Anuradha where she told that her husband was maltreating her. On 19.5.2007 Sameer told her on telephone that character of her daughter is not good. She has further stated that on 23.10.2007 at about 4 P.M. her son-in- law told her on telephone that Anuradha has consumed poison. 6. It has come in the investigation that Anuradha reported for duty at Police Station, Baijnath on 23.10.2007. She came to her residence at about 1 O’clock for lunch. At 3.15 P.M. petitioner informed the police station on telephone that his son is sick and Anuradha is taking their son to the hospital and would report a bit late on duty. But, at about 4.40 P.M. mother of Anuradha from village Thural informed on telephone that mother-in-law of Anuradha has told her that Anuradha has consumed poison and died. It has also come in the investigation that at about 1.30 P.M. Anuradha, her husband and maidservant Brahami Devi were in the house. Brahami Devi served lunch to Anuradha and petitioner on the dinning table. The petitioner asked Brahami Devi to serve lunch to son in a separate room. Anuradha took lunch, she fell on the ground while cleaning hands. The petitioner took Anuradha to a private hospital. The incident is of about 2/2.15 P.M. but at 3.15 P.M. petitioner informed the police that their son is ill. It has also come in investigation that petitioner did not inform the police. The petitioner fled away from the scene after the dead body of Anuradha was taken for postmortem. It has also come in investigation that petitioner had suspected that Anuradha was having illicit relations with his driver Amit and he once caught them in a compromising position. 7. The prosecution case is that when Anuradha came for lunch, she was perfectly all right and from her conduct nothing abnormal was noticed nor it has come in investigation that Anuradha on her own consumed 4 the poison. The postmortem of the deceased was conducted and ultimately as per the opinion of the doctor the cause of death is phosphide poisoning. 8. Mr. M.S. Guleria, learned counsel for the petitioner has submitted that there is nothing on record that the petitioner gave poison to Anuradha. He has submitted that in order to prima facie establish the involvement of the petitioner for causing the death of Anuradha due to poisoning, it is necessary to establish that the poison was procured by the petitioner, it was possessed by him and ultimately he gave the poison to Anuradha. In absence of evidence to this effect it cannot be said that petitioner gave poison to Anuradha. Mr. Guleria for this proposition has relied upon Ramgopal vs. State of Maharashtra, AIR 1972 SC 656. He has heavily relied on the report under Section 173 Cr.P.C. that despite intensive interrogation of the petitioner no recovery of poison was made from the petitioner. 9. The relations between the petitioner and deceased were not cordial, the petitioner had suspected the fidelity of Anuradha. As per the opinion of the doctor, Anuradha died of phosphide poisoning. The prima facie question is whether the poison was given by petitioner or not. It is nobody’s, case till now that poison was given to Anuradha by some third person. From the submissions made by Mr. Guleria it can be inferred that perhaps deceased herself took the extreme step for ending her life by taking poison. The deceased came to her residence at about 1 O’clock for taking lunch, infact she took lunch and no body noticed any abnormal conduct, behaviour of the deceased at that time. This prima facie excludes the theory of consumption of poison by Anuradha of her own. No suicide note of Anuradha has been recovered during investigation. A suspicious circumstance against the petitioner is that he informed the police station at Baijnath that his son is sick and Anuradha is taking the son to the hospital 5 and she will report at Police Station a little bit late. It has come on record that on that date son of the petitioner was not sick. There is another circumstance which is against the innocence of the petitioner at this stage, the petitioner did not inform the police that Anuradha has consumed poison and she has died. The information to the police was given by Smt. Daya Kumari mother of the deceased. The learned Addl. Advocate General has also relied on the fact that the conduct of the petitioner was otherwise abnormal in as much as he left the scene after the body of the deceased was taken for postmortem. In Ramgopal case supra the Hon;ble Supreme Court has held as follows:- “In a case of death by poisoning it is only when the motive is there and it is proved, that the deceased died of the poison in question, that the accused had that poison in his possession and that he had an opportunity to administer the poison to the deceased and the Court can infer that the accused administered the poison to the deceased resulting in his death” In the present case the relations between petitioner and the deceased were strained, the petitioner was suspecting the character of the deceased. He suspected illicit relations of Anuradha with the driver of the petitioner. The doctor has given the opinion that cause of death is phosphide poisoning, therefore prima facie it has been established that Anuradha has not died natural death, rather she has died of poison. The fact that petitioner had poison and he had an opportunity to administer the poison is a question to be established by the prosecution during trial. The opportunity to administer the poison in the present case cannot be ruled out as both husband and wife were in the dinning room and took lunch together. The question of possession of poison with the petitioner at this stage does not require minor details. In Kalyan Chandra Sarkar vs. Rajesh Ranjan alias 6 Pappu Yadav and another AIR 2004 Supreme Court 1866, the Hon’ble Supreme Court has held that 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. In Jayendra Saraswathi Swamigal vs. State of T.N. (2005) 2 Supreme Court Cases 13, the Hon’ble Supreme Court has held that the considerations which normally weigh with the court in granting bail in non-bailable offences basically are--- the nature and seriousness of the offence, the character of evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. Therefore, keeping in view the total facts and circumstances of the case, no case for grant of bail is made out by the petitioner. The application is accordingly dismissed. ( Kuldip Singh ) Judge March 7, 2008 (sks)