IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISIDICTION

SPECIAL LEAVE PETITION (CRL) NO 5830 OF 2014

IN THE MATTER OF:

HEMANT KUMAR SHARMA ..PETITIONER

VERSUS

STATE OF RAJASTHAN …..RESPONDENT

COUNTER AFFIDAVIT ON BEHALF OF THE RESPONDENT STATE

MOST RESPECTFULLY SHOWETH:

1. At the outset, it is submitted that this Special Leave Petition filed by

the Petitioner is a complete abuse of process of the law. No question of

law, much less any substantial question of law, arises for consideration

of this Hon'ble Court in the present Petition. It is respectfully submitted

that the Petitioner vide the present SLP is has approached this Hon’ble

Court challenging the dismissal of his third bail application wherein the

Hon’ble High Court after correct appreciation of all the facts and the

stage of the evidence along with the gravity of the offence committed by

the accused Petitioner, has categorically held that,

“Public Prosecutor and Counsel for the complainant jointly submit

that from the statement of PW1 Hitendra Pradhan, the charge

against the accused petitioner stands proved, however, after the

matter was remitted by this Court, the charge against the

accused petitioner is for the offence u/s. 498A, 304B & 306 I.P.C.
 & what will be the fate of the misc petition filed by the accused

petitioner u/s 482Cr.P.C cannot be pre empted that this stage.

Taking note of the accusation and other material on record, this

court does not find any substantial change in circumstances which

could be considered to grant indulgence of post bail arrest U/S

439Cr.P.C to the accused Petitioner.

Consequently, the third bail application filed by the accused

Petitioner stands dismissed.”

It is submitted that the Hon’ble High Court vide its order while correctly

applying the well settled principles of law for the grant of bail has rightly

rejected the same, as there has been no substantial change in

circumstance since the rejection of the previous bail application of the

accused Petitioner, hence the present Special Leave Petition deserves to

be dismissed.

2. It is submitted that it is well settled principle of law that for the

purpose of bail the following factors have to be considered, (i) whether

there is any prima facie or reasonable ground to believe that the

accused had committed the offence; (ii) nature and gravity of the

charge; (iii) severity of punishment in the event of conviction; (iv)

danger of accused absconding or fleeing if released on bail; (v)

character, behavior, means, position and standing of the accused;

(vi)likelihood of the offence being repeated; (vii) reasonable

apprehension of the witnesses being tampered with and (viii) danger of

justice being thwarted by grant of bail. It is most respectfully submitted

that in the present factual matrix, taking into account not only the

gravity of the offence committed but the fact that prima facie there is
 very strong and cogent evidence to establish that the accused Petitioner

did in fact subject the deceased, his wife to mental and physical cruelty

that caused her death and is therefore guilty of offences under Section

498A and 302.

3. It is submitted that the accused Petitioner is trying to take advantage

of an alleged suicide note, not recovered by the police during

investigation but presented by the accused, however, it is relevant to

point out that the said alleged suicide note does not contain any

averment that the deceased was committing suicide or was likely to

commit suicide at any given point. It is further submitted that the

interpretation of the contents of the alleged suicide note are a matter of

trial and the accused cannot rely upon the same for the purpose of

securing bail at this stage. It is further submitted that FSL report stating

that the alleged note is in the writing of the deceased does not amount

to any change in circumstance which would entitle the accused

Petitioner for grant of bail. Moreover, the contents of the alleged note

are yet to be determined by the Trial Court whether they amount to a

suicide note or not, in the event it is determined against the accused,

the possibility of charges under Section 302 against the accused being

revived are very high, in such circumstances if the accused is allowed to

take advantage of the said document at this stage, it would amount to

travesty of justice causing irreparable loss to the Respondent.

4. It may further be brought to the notice of this Hon’ble Court that the

medical evidence does not support the theory of suicide, infact it clearly

establishes that the deceased was throttled to death within barely 6-7

months of her marriage in the back drop of harassment and cruelty she
was subjected to by the accused Petitioner and his parents for bringing

in adequate dowry which is reflected in the First Information Report no

139 of 2011 dated 28.10.2011. For ready reference the relevant portion

of the Post Mortem Report reads as follows:

“ 2. Condition of wounds, nature/ shape: Ligature mark (dark brown)

coloured) dimension from mid line. Rt side 13 cm upto upper side of

nape of neck & Lt side 8 cm extending towards the ear, width 2.5 cm.

3. Bruises, condition, shape, nature: A hematoma, lt side of forehead

(6cm*3cm*0.5cm); bruise above the left breast (oval shaped)

horizontally 6 cm, vertically 4 cm;

4. Marks on the neck etc: Cervical vertebral bodies C3 & C4 were found

damaged. Bilateral dilated and fixed.

OPINION: in our opinion, Dr. G.P. Meena, MLO, Dr. Meena Gupta M.O.

and Dr. Luv Kundnani M.O. (pediatric) the cause of the death is

Asphyxia due to compression of neck by the ligature produced by

strangulation. “

It is submitted that the statement of the doctor PW 12, Dr. Luv

Kundnani has clearly stated in his cross examination that, “ the type of

ligature mark as shown to be present on the body of the deceased in

the post mortem report such mark cannot exist due to hanging.”

It is most humbly submitted that from the post mortem report and the

statement of the doctor it is crystal clear that the deceased could not

have committed suicide and the possibility of the accused Petitioner

strangulating and causing the death of his wife cannot be ruled out.

Under such circumstances, it is most humbly submitted that the accused

Petitioner ought not to be granted bail as prima facie there are

 reasonable grounds to believe that the accused Petitioner has infact

committed the heinous offence. A copy of the post mortem report and

statement of PW 12, Dr. Luv Kundnani are annexed herewith and

marked as Annexure R – 1 (colly).

5. Further, it is submitted that it is very relevant to point out that the

trial is yet not complete and is at the stage where the evidence of the

prosecution is going on. Under such circumstances, it is apprehended

that if the accused Petitioner is granted bail, there is every likelihood of

his trying to influence and intimidate the witnesses. That the accused

Petitioner undergoing trial and he ought not to be released on bail till

the prosecution evidence is not concluded.

6. That no new facts or grounds have been pleaded before this Hon’ble

Court which are not part of record of the courts below.

FILED ON: FILED BY:

(SUBRAMONIUM PRASAD)
ADVOCATE FOR THE RESPONDENT NOS.5-8