Hariya …… v. State of Uttarakhand

Judgment

1. The present application under Section 439 of the Code of Criminal Procedure has been filed by the applicant Hariya seeking bail in connection with FIR No. 0022 of 2024 dated 13.05.2024 registered at Police Station Kalsi, District Dehradun for offences punishable under Section 302 of the Indian Penal Code.

2. The applicant has been judicial custody since

29.05.2024, having been arrested in connection with the alleged murder of one Asaru.

3. The State case, in brief, is that on 16.05.2024, a written complaint was lodged by one Khajan Singh, son of the deceased Asaru, alleging that his father was murdered by the applicant Hariya and his son Dinesh. According to the complaint, on 13.05.2024 at noon, the

complainant's wife, Smt. Raksha Devi informed him that the applicant had called his father to his house for tea. After consuming alcohol and tea, the applicant and his son allegedly murdered the complainant's father. Based on this complaint, FIR No. 0022 of 2024 under Section 302 IPC was registered at Police Station Kalsi, District Dehradun. 1

4. The investigation commenced immediately thereafter. The body of the deceased was subjected to a post-mortem examination wherein, as per the applicant's contention, no visible injury was found on the body. However, the post-mortem report dated 14.05.2024 revealed a contusion on the left side of the parietal region of the head, along with other injuries, and the cause of death was attributed to antemortem injuries.

5. Following the post-mortem findings, the police arrested the applicant on 29.05.2024. As per the State, upon the applicant's disclosure, a wooden stick allegedly used in committing the offence was recovered. The investigating officer has submitted the charge sheet, and the trial has commenced.

6. Learned counsel for the applicant, Shri Rajat Mittal, has vehemently argued that the applicant has been falsely implicated in this case. The detailed narrative presented by the applicant's counsel is as follows: The applicant's wife has a mental illness, requiring constant supervision. On 13.05.2024, at about 6:00 a.m., the applicant's daughter, Nikita and granddaughter, Neelam, went to Chhani to feed the animals. In contrast, after locking his house from the outside, the applicant went to a shop in Madwan to purchase household items. When he returned at approximately 6:30 p.m., he found the latch of his house open, which he had previously locked. Upon entering, he discovered the deceased Asaru and his wife in a suspicious condition in one of the rooms. Upon seeing the applicant, the deceased Asaru became frightened, leading to a scuffle between them. The applicant, in anger and confusion, locked the deceased in 2 the room while his wife ran away from the scene. The applicant immediately went to the Village Elder, Sardar Singh, narrated the incident, and was advised to lodge an FIR against the deceased. The applicant contacted his son via mobile phone to assist with filing the FIR, but his son asked him to come to Haripur instead. Meanwhile, the applicant's daughter Nikita returned from Chhani with her niece. She observed Asaru (the deceased) standing at the window of the locked room. When she inquired what had happened, Asaru informed her that the applicant had locked him in the room and gone to complain against him to the Village Elder. Nikita also conveyed this to Asaru's daughter-in-law, Smt. Raksha has acknowledged this in her statement to the police.

7. It is the applicant's case that when Smt. Raksha arrived at around noon with some goods; she found her father-in-law (the deceased) lying unconscious the applicant's courtyard. The applicant's counsel submits that the deceased must have forcefully shaken the door latch, causing it to open, after which he attempted to flee, slipped, and fell on the ground, sustaining the fatal head injury that led to his death.

8. The counsel for the applicant has emphasised that the statement of Sardar Singh Rawat confirms that the applicant had approached him shortly after the incident. This, according to the defence, establishes that the applicant had no intention to kill the deceased and had taken steps to address the situation through proper channels.

9. The learned counsel further contends that no direct evidence links the applicant to the crime. The case is based entirely on 3 circumstantial evidence, and the evidence chain is incomplete. The alleged recovery of the murder weapon was made in violation of Section 27 of the Indian Evidence Act and cannot be relied upon. Moreover, there is no motive or intention attributed to the applicant to commit the alleged murder.

10. It has also been submitted that the applicant has no prior criminal history, and given his age and the case circumstances, he deserves the benefit of bail.

11. Conversely, the learned counsel representing the State, Mr. Vipul Painuli, has vehemently opposed the bail application. The State's case, as presented by the State counsel, is as follows: The deceased died due to a head injury inflicted by the applicant with a wooden stick. This is evidenced by the post-mortem report, which mentions a contusion on the left side of the parietal region, consistent with a violent blow. The recovery of the murder weapon (wooden stick) was made at the instance of the applicant on 29.05.2024, further strengthening the State's case. The State argues that the statements of various witnesses, including the complainant and the deceased's wife, support the State's version of events. According to the State, the applicant, upon finding the deceased with his wife, became enraged, inflicting a severe blow to the deceased's head with a wooden stick, and locked him in a room before leaving the premises. The deceased succumbed to the head injury while locked in the room. The State has emphasised that the applicant's alternative narrative, suggesting that the deceased died due to an accidental fall, is contradicted by the nature of the injury 4 and the medical evidence. The post-mortem report establishes that the death was due to antemortem injuries, consistent with a deliberate act of violence rather than an accidental fall.

12. The State contends that, given the gravity of the offence (murder under Section 302 IPC) and the strength of the evidence, the applicant should not be granted bail. There is a legitimate concern that if released, the applicant may influence witnesses, particularly given that the trial has just begun, and key witnesses are yet to be examined.

13. After considering the detailed submissions of both sides and meticulously perusing the material on record, this Court finds it necessary to delve deeper into various aspects of the case to arrive at a just decision on the bail application.

14. In the present case, the Court observes that several factors warrant careful consideration: Nature of Evidence: The case against the applicant is primarily based on circumstantial evidence. There is no direct eyewitness to the alleged murder. The State's case hinges on the statements of the complainant and other witnesses who were not present at the time of the alleged incident, the recovery of the alleged murder weapon, and the medical evidence. Medical Evidence: The Inquest Report initially did not mention any visible injuries on the body of the deceased, which raises questions about the immediate cause and circumstances death. The post-mortem report subsequently revealed a contusion on the left side of the parietal region, leading to the conclusion that the death was due to antemortem injuries. It is noteworthy that Dr. 5 Rajendra Sharma, who conducted the post-mortem, has indicated in his statement that such a bruise could also have been caused by a fall, lending some credence to the applicant's version of events. Witnesses' Statements: The statements of key witnesses present a complex picture. Sardar Singh Rawat (Village Elder) has confirmed that the applicant approached him shortly after the incident, narrating that he had found the deceased in a compromising position with his wife. This is consistent with the applicant's version and suggests that the applicant was not attempting to flee or conceal the incident. Delay in Filing FIR: The FIR was registered on 16.05.2024, three days after the alleged incident on 13.05.2024. While the delay by itself may not be fatal to the State's case, it does raise questions about the immediate perception and response to the incident by the complainant and other family members of the deceased. Recovery of Murder Weapon: While the State emphasises the recovery of the alleged murder weapon (wooden stick) at the instance of the applicant, the applicant has challenged the legality and reliability of this recovery. The evidentiary value of such recovery must be tested during the trial, particularly in light of the applicant's contention that it violated Section 27 of the Indian Evidence Act. Motive: The State suggests that the applicant killed the deceased in a fit of rage after finding him in a compromising position with his wife. While this provides a potential motive, it also aligns with the applicant's version that he was provoked and merely locked the deceased in a room, without any intention to cause death. 6 Applicant's Conduct: The applicant's conduct immediately after the incident, particularly his decision to approach the Village Elder and attempt to complain, is not typical of someone who has just committed a premeditated murder. These actions are more consistent with someone aggrieved and seeking redress through legitimate channels. Alternative Explanation: The applicant's alternative explanation for the deceased's death – that he forcefully opened the door, attempted to flee, slipped, and sustained a fatal head injury in the fall – cannot be summarily dismissed at this stage. This version finds some support in the medical evidence, which indicates that the bruise could have been caused by a fall, and the witness statements confirm that the deceased was seen alive after being locked in the room.

15. The Supreme Court, in Gurcharan Singh v. State (Delhi Administration) (1978) 1 SCC 118, has held that the Court, while dealing with a bail application, should consider factors such as the nature and seriousness of the offence, the character of the evidence, the circumstances peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, the reasonable apprehension of witnesses being tampered with, and the more significant interests of the public or the State.

16. In line with the principles laid down in Gurcharan Singh, the Court must balance the gravity of the offence with the quality of evidence and risk factors, all of which in the present case lean towards granting bail.

17. The apprehension raised by the State that the applicant, if released, may influence witnesses does not appear to be substantiated 7 by any specific material. The applicant has no prior history of witness tampering or similar misconduct. Moreover, appropriate conditions can be imposed to ensure that the applicant does not interact with or influence witnesses during the pendency of the trial.

18. Considering the totality of circumstances, including the nature of evidence, the statements of key witnesses, the medical evidence, the applicant's conduct immediately after the incident, the absence of criminal antecedents, the length of detention already undergone, and the presumption of innocence until proven guilty, this Court is of the view that the continued incarceration of the applicant pending trial is not justified.

19. The existence of a plausible alternative explanation for the deceased's death, supported to some extent by witness testimonies indicating that he was seen alive after the alleged confrontation with the applicant, introduces a significant element of doubt that can only be resolved through a full-fledged trial. At this stage, the applicant deserves the benefit of this doubt for the limited purpose of bail consideration. ORDER Let the applicant, Hariya, S/o Sri Thechakoo, R/o Village Rupou, Post Dimau, Dehradun be released on bail in connection with FIR No. 0022 of 2024 dated 13.05.2024, registered at Police Station Kalsi, District Dehradun, under Section 302 of the Indian Penal Code, on furnishing a personal bond of ₹50,000/- with two sureties of the like amount to the satisfaction of the Court concerned. The bail is granted subject to the following conditions: (i) The applicant shall not tamper with the evidence or influence any witness. 8 (ii) The applicant shall appear before the trial court on all fixed dates and cooperate with the proceedings. (iii) In case of breach of any of the above conditions, the State shall be at liberty to seek cancellation of bail. (iv) It is clarified that any observations made in this order are solely to decide the bail application and shall not be construed as an expression of opinion on the case's merits, which will be determined during trial based on the evidence adduced by both sides. Dated:02.04.2025 NR/ (Ashish Naithani J.) 9