The Allahabad High Court allowed the bail application of a woman and said the basic principle underlying the doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property.
A single-judge bench of Justice Sanjay Kumar Singh passed this order while hearing a Criminal Misc Bail Application filed by the accused woman.
By means of the application under Section 439 of CrPC, the applicant, who is involved in case under Section 302 IPC, police station Dibai, district Bulandshahr, seeks enlargement on bail during pendency of trial.
The facts of the case are that the first informant Neetu Singh lodged a FIR on 18.1.2022 at 04.24 PM that on 17.1.2022, when the informant with his brother Ramu, Yogendra and Sriram were guarding their cows in the field, at about 6.00 P.M, Satyaveer Singh, Kalu, Sachin, Golu, who are residents of the same village, came there and took away his brother Ramu on the pretext of taking tractor to sugar mill in the night. On 18.1.2022 till 7.00 AM, when his brother did not return home, he went to the house of Satyaveer to enquire about his brother. Thereupon, Satyaveer told him that his brother is lying dead in the house of Monu, son of Rajpal.
The FIR further alleged that when the first informant visited the house of Monu along with several other persons of the village, he found the dead body of his brother was lying there. There were injuries on the head, face, eyes and body of the deceased. The informant expressed a belief that his brother has been done to death under conspiracy by Satyaveer Singh, Kalu, Sachin, Golu, Kuldeep, Richa and Monu.
The case of the applicant is that she assaulted the deceased to save herself from being raped, which resulted in his death.
It is contended by the counsel for the applicant that in fact the incident has not taken place as set up in the first information report dated 18.1.2022 lodged by the first informant, but the facts are that the deceased Ramu along with two other persons, in order to outrage the modesty of the applicant, barged into her house, dragged the applicant into another room, tore her clothes and tried to rape her. The applicant, in order to save herself from being raped, assaulted the deceased with an iron rod, which was kept in the room, which proved fatal.
It is also submitted that the information about the said incident was given by the applicant to the police by dialling 112 from her mobile on 17.01.2022 at 23:52:27 hours and the police in turn gave information to police station Dibai on 18.01.2022 at 00:13:25 O’clock.
It is pointed out by the counsel for the applicant that from the side of the applicant, the matter was also reported to the police by making an application, but the police did not lodge the FIR of the applicant.
Being unsuccessful in getting her report lodged, the applicant moved an application under Section 156(3) CrPC before the Judicial Magistrate, Bulandshahr. The Court order dated 28.1.2023 directed the Station House Officer concerned to lodge the FIR of the applicant under the appropriate section and investigate the matter, but it appears that no heed was paid to the order of the Magistrate and till date FIR has not been lodged.
It is contended by the counsel for the applicant that in her statement under Section 161 CrPC, the applicant has admitted that she assaulted the deceased with the iron rod, which was kept to untie the wheel.
It is also pointed out by the counsel for the applicant that the post-mortem report of the deceased corroborates the story set up by the applicant in her application under Section 156(3) CrPC.
On the strength of the aforesaid facts, the counsel for the applicant submitted that the deceased, in order to save herself from being molested, assaulted the deceased with the iron rod in self defence, which resulted in his death. Alternatively, it is also argued by the counsel for the applicant that considering the ante-mortem injury received by the deceased, the case against the applicant shall not traverse under Section 304 IPC inasmuch as the deceased has only received one lacerated wound 10 cm x 3 cm bone deep over head.
Lastly, it is submitted by the counsel for the applicant that there is no chance of the applicant fleeing from the judicial process or tampering with prosecution evidence.
The applicant is languishing in jail since 03.2.2022 and in case she is released on bail, she will not misuse the liberty of bail and cooperate with the trial.
On the other hand, Additional Government Advocate as well as counsel appearing on behalf of the first informant opposed the prayer for bail by submitting that the applicant along with the co-accused persons in a preplanned manner, committed the murder of the deceased. They further submitted that the weapon of assault (iron rod) has been recovered at the pointing out of the applicant.
However, AGA, upon instructions from the concerned police station, submitted that the FIR of the applicant has been registered against Ramu and Neetu Singh in case under Sections 452, 354(B) and 506 IPC, police station Dibai, district Bulandshahr. Considering the gravity of the offence, the bail application of the applicant is liable to be rejected.
The Court said the basic principle underlying the doctrine of right of private defence is that when an individual or his property is faced with a danger and immediate aid from the state machinery is not readily available, that individual is entitled to protect himself and his property. That being so the necessary corollary is that the violence which the citizen defending himself or his property is entitled to use, must not be unduly disproportionate to the injury which is sought to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. Further, the means and the force a threatened person adopts at the spur of the moment to ward off the danger and to save himself or his property cannot be weighed in golden scales.The case set up by the applicant in her application under Section 156(3) CrPC as well as in her statement under Section 161 CrPC is that deceased along with two others barged into the house of the applicant, dragged her to another room and tried to outrage her modesty. However, the applicant managed to get free herself from the clutches of the deceased and assaulted him with the rod, which was lying there. The fact that the deceased was living in the house along with her minor daughter and son cannot be overlooked. As per the case of the applicant, two persons were also in the house along with the deceased and the possibility of her minor daughter being subjected to molestation cannot be ruled out at this stage.
“Having heard counsel for the parties and examined the matter in its entirety, I find that the applicant has set up her case of self-defence and prima facie the preponderance of probabilities is in favour of her plea. I also find that as per prosecution case, the deceased was taken by the co-accused Satyaveer Singh, Kalu, Sachin and Golu, but how the deceased reached the house of the applicant has not been put forth by the prosecution.
Considering the facts and circumstances of the case as well as keeping in view the nature of the offence, evidence, complicity of the accused and submissions of the counsel for the parties, the Court is of the opinion that the applicant has made out a case for bail,” the Court observed while allowing the bail application.
The Court ordered let the applicant Richa, be released on bail in the aforesaid case crime number on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions, which are being imposed in the interest of justice:-(i) That the applicant shall cooperate in the expeditious disposal of the trial and shall regularly attend the court unless inevitable.
(ii) That the applicant 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence.
(iii) That after her release, the applicant shall not be involved in any criminal activity.
(iv) The identity, status and residential proof of sureties will be verified by the court concerned before the release of the applicant.
In case of breach of any of the conditions mentioned above, the court concerned will be at liberty to cancel the bail of the applicant.