Kamlesh vs State Of Himachal Pradesh

Satyen Vaidya, J

Petitioner is facing trial for offences under Sections 302, 201, 120-B, IPC before the learned Additional Sessions Judge, Nalagarh, District Solan, Himachal Pradesh.

On 16.09.2020, complainant Ram Aasra informed police that his son Sandeep alias Sunny, aged 10 years, was missing since 14.09.2020 and his dead body had been found in fields near Akash Institute of Medical Sciences, Nalagarh at Nikuwal within jurisdiction of Police Station, Nalagarh, District Solan, H.P. Police reached the spot. Dead body was sent for postmortem. CCTV footage from the CC camera installed in Akash Institute of Medical Sciences were analysed, whereafter statement of complainant Ram Aasra was recorded under Section 154, Cr.P.C. He alleged that his wife Kamlesh (petitioner) and her co-accused Ashok alias Governer had murdered his son as the deceased had seen both the accused persons in compromising position. He narrated that his son Sandeep alias Sunny was ordinarily residing with his Aunt, who was also resident of the same area. On 14.09.2020, Sandeep alias Sunny had left for house of aunt of complainant at about 9.00 A.M. The complainant visited his house during the day time for lunch, he enquired about Sandeep alias Sunny and the petitioner disclosed that the boy had left some times back for aunt's house after having lunch. In the evening also Sandeep was not at home. Complainant had thought that his son would be at aunt's place. It was on 15.09.2020 that the complainant after duty hours, at about 6.00 P.M., visited his aunt's house to enquire about Sunny and he came to know that Sunny was not there since 14.09.2020. He search for his son in the evening, but did not find him. On 16.09.2020, he along with his other sons found dead body of Sandeep @ Sunny at about 7.30 P.M., in the fields.

On completion of investigation, challan was presented and petitioner along with her co-accused is facing trial as noticed above.

Petitioner is in judicial custody since 23. 09.2020. It is contended on behalf of the petitioner that she is innocent. As per averments made in the bail petition, petitioner has been framed in the case with ulterior motive. It is submitted that the case is based on circumstantial evidence and there is no direct evidence against the petitioner. It is further submitted that petitioner has four other children. Petitioner has undertaken to abide by all terms and conditions which may be imposed against her.

I have heard Mr. Akhil Sharma, Advocate, for the petitioner and Mr. Arvind Sharma, Additional Advocate General, for the respondent and have also gone through the entire record carefully.

The charge against the petitioner is of having committed murder of her son. The cause of death, as opined after postmortem, is asphyxia. Allegations against the petitioner and her co-accused are that they were found in a compromising situation by the deceased and with the object to conceal their illicit activity, they smothered the child with a scarf (dupatta) and caused his death. Allegations are very serious. The offence is heinous and if proved, may entail imprisonment for life and even capital punishment. Merely, because the case of the prosecution is based on circumstantial evidence, seriousness and gravity of allegations do not get diluted.

Prosecution mainly has relied upon CCTV footage in which co-accused of petitioner is seen entering the house of complainant twice on 14.09.2022, but there is no evidence of his exit from the main door. It is not the case that the petitioner was also working and was not at home at the relevant time. Though, this Court while deciding bail application will not minutely scan the material collected by the investigating agency, still the same can be looked into for the purpose of assessing the gravity and seriousness of allegations. It is only for such purpose that the above stated facts have been noticed.

The complainant is none other than the husband of petitioner. During the pendency of this petition, an application was filed under Section 482 of the Cr.P.C., for placing on record, an affidavit sworn by the complainant. In the affidavit, it is mentioned that FIR No. 292 of 2020, dated 17.09.2020 is false, frivolous and bogus case. Deponent of the affidavit had never filed such complaint. In fact, he had reported to the police the factum of his son having been missing and the police had got blank papers thumb marked from the deponent. It has also been stated that petitioner is having good character and all allegations against her are false.

The filing of affidavit, in the aforesaid manner, in the considered view of this Court, clearly is an act of tampering with or influencing the prosecution evidence. Petitioner is in custody for the last about two years. Complainant was fully aware that she had been taken in custody for the murder of his son. The fact that the affidavit has been sworn by him after almost two years is evidently a manipulation. Keeping in view the entirety of facts and circumstances, the conduct of the petitioner is not bonafide.

The trial is at the stage where prosecution evidence is being recorded. The fairness in trial is at stake. The conduct of petitioner provides reasons to believe that the release of petitioner on bail, at this stage, will be prejudicial to the conduct of trial in accordance with law.

Even otherwise, petitioner is not entitled for bail, keeping in view the seriousness and gravity of allegations against her. The release of petitioner on bail will send wrong signals in the society.

In view of the above discussion, there is no merit in the instant petition and the same is accordingly dismissed.

However, it is made clear that the observations made hereinabove shall have no bearings on the merit of the case and shall be construed for the disposal of the present petition only.