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2010 DIGILAW 385 (JK)

Jagdish Kumar v. State

2010-07-08

Sunil Hali

body2010
1. As alleged by the prosecution, deceased Monika Chowdhary is stated to have consumed poisonous substance as a result of which she died on 28.10.2009. The deceased was married with accused Sandeep Kumar son of Jagdish Kumar on 03.03.2009. Initial period of marriage is stated to have passed off without any complaint regarding demand of dowry by the accused. The harassment is stated to have started thereafter by the accused persons in the nature of demand of dowry. It is contended that the deceased was harassed and physically tortured by the accused persons. 2. A demand of Rs. 1.00 lac was made after three months of marriage out of which Rs.50,000/- is stated to have been paid by the father of the deceased with the promise to make balance payment and car after sometime. The deceased was dropped at her father’s house on 19.10.2009 by accused Randeep Chowdhary. The father and brother of the deceased dropped her back at her-in-laws house with the promise to make other payment. She is stated to have consumed poisonous substance on the intervening night of 27/28th October, 2009 and died on 28.10.2009. 3. The police on receipt of this information proceeded under Section 174 Cr.P.C. and on inquest report prepared sated that the deceased had died by consuming poisonous substance. After verification and inquiry under Section 175 Cr.P.C., FIR No.111/2009 came to be registered on 12.12.2009 in Police Station, Vijaypur against the accused persons, consequently, accused came to be arrested and while tracking the role of accused persons, investigation reveals the following things:- (a) That after three months of marriage demand for dowry was made by the accused persons and on failure to meet the demand, she was subjected to cruelty; (b) That the demand of Rs.1.00 lac was made out of which Rs.50,000/- was paid and remaining amount was promised to be paid after some times; (c) That no medical assistant was provided to the deceased from 11.30 a.m. to 1.30 p.m; (d) That parents of the accused were informed about the death of the deceased Monika Chowdhary at 4.30 p.m on 28.10.2009; (e) That accused Randeep Chowdhary brother-in-law was seen getting poisonous material prior to the occurrence. 4. 4. The accused petitioners in the face of the aforesaid allegations, moved an application for grant of bail before the Ist Additional Munisff, Samba and on refusal of the bail by the said Court vide its order dated 08.01.2010, the accused-petitioners filed fresh bail application before the learned Sessions Judge, Samba, who also vide its order dated 18.01.2010 rejected the bail application of the accused-petitioners on the following grounds:- (a) That the accused did not inform the complainant about the deceased having consumed the poisonous substance; (b) That the conduct of the accused-petitioners in not getting immediate treatment for the deceased from the competent doctor hints towards their complicity; (c) That only on the intervention of the Dy. Commissioner the Board was got constituted for conducting the post-mortem of the deceased reveals the influence of accused in the area; and (d) That the accused-petitioners are likely to influence the witnesses or tamper with the evidence. 5. Heard learned counsel for the parties and perused the record. 6. The principles which generally govern the grant of bail are relatable to following things:- (i) Seriousness of the allegations, severity of punishment, the character of evidence on which the charge is supposed to be sustained, tampering and intimidating the witnesses and chances of running away from the trial. (ii) False implication of the accused, allegations leveled not believable and the wrecking vengeance for political or business reasons. 7. The above principles are in paramateria with the power of the court under Section 498 Cr.P.C. It is also to be noted that at the stage of granting bail, the court can only go into the question as to whether a prima-facie case is established against the accused and cannot go into the evidentiary value, creditability and reliability of the witnesses. 8. There is no dispute that case is based on circumstantial evidence and there is no direct evidence of having instigated the deceased to commit suicide by the accused.. 9. In the light of the principles laid down above, the pleas as raised in the present bail application are required to be examined. The accused were charged under Sections 306/498-A and 34 RPC. 10. In order to sustain the offence under Section 306 RPC, it has to be shown that the abetment, which led the deceased to commit suicide should connote instigation of the person to do such thing. The accused were charged under Sections 306/498-A and 34 RPC. 10. In order to sustain the offence under Section 306 RPC, it has to be shown that the abetment, which led the deceased to commit suicide should connote instigation of the person to do such thing. The word "instigate" denotes incitement or urging to do some drastic or inadvisable action or to stimulate or incite. 11. In order to constitute offence under Section 306 RPC, prima facie it has to be established that the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. Some overt act of accused which facilitated the commission of suicide has to be prima-facie established. Mere demand of dowry, harassment and physical torture cannot be accepted as proof of abetment in such cases. In the present case, there is no direct evidence to establish that the accused either aided or instigated the deceased to commit suicide or entered into any conspiracy to aid her in committing suicide. 12. Learned counsel for the respondents while arguing stated that in absence of direct evidence of abetment, the prosecution has relied upon Section 114-C of the Evidence Act under which the Court has to presume on proof of circumstances enumerated therein, and having regard to all the other circumstances of the case, that the suicide had been abetted by the accused. According to learned counsel for the respondents, the prosecution was required to prove the following:- (i) That the deceased committed suicide within seven years from the date of marriage; (ii) That her-in-laws subjected her to cruelty’ and (iii) That on establishment of the aforesaid factors, the presumption under Section 114(C) can be drawn. 13. It is true that the presumption under Section 114 (C) can be drawn on satisfying the aforesaid conditions. However, such presumption cannot be drawn unless and until the facts are prima facie established. One of the aspect which was required to be established is that whether the alleged cruelty was of such nature as was likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health of the woman. Thus, where the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty". Thus, where the allegation is of cruelty, it must consider the nature of cruelty to which the woman was subjected, having regard to the meaning of the word "cruelty". The mere fact that a woman committed suicide within seven years of her marriage and that she had been subjected to cruelty by her husband, does not automatically give rise to the presumption that the suicide had been abetted by the accused. In the present case there is no clinching evidence, which would prima facie establish that nature of cruelty was of such nature as was likely to drive the woman to commit suicide. 14. The allegation regarding demand of dowry is cruelty as contemplated under Section 498-A RPC but mere demand of dowry can be a circumstance in the case of offence under Section 306 RPC but not conclusive. The prosecution is required to show that the accused persons have abetted/instigated the deceased to commit such offence. 15. For the purpose of appreciating the role of the accused persons in the alleged crime, prim-facie evidence should indicate that there is probability of the accused being convicted on the material so collected by the prosecution. It is also to be noted that for the purpose of granting or refusing the bail, the case of the petitioners comes under exception to Section 497 Cr.P.C. As already indicated above, there is no direct evidence regarding abetment/instigation made by the accused to commit suicide. 16. There is no dispute that the petitioners are involved in an offence, which carries a maximum punishment of ten years or life imprisonment. While dealing with an application for grant of bail, there should be reason to indicate in the order for prima-facie concluding why the bail was granted where the accused are charged of serious offence. Even in cases where it is prima-facie disclosed that the accused are entitled to bail on the basis of material collected by the prosecution, even then, the bail cannot be granted as a matter of course unless certain other aspects are taken care of which are stated hereinabove. Even in cases where it is prima-facie disclosed that the accused are entitled to bail on the basis of material collected by the prosecution, even then, the bail cannot be granted as a matter of course unless certain other aspects are taken care of which are stated hereinabove. However, following things are to be taken into consideration while granting bail:- (i) the nature of accusation and severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of witnesses being won over or apprehension of threat to the complainant; and (iii) the affect on the public at large. 17. While applying the aforementioned principles, it is necessary for the court to examine the nature and gravity of the circumstances under which the offence is committed. Existence of a prima-facie case is essential. If there is no prima-facie case, there is no question of considering other circumstances. Even where a prima-facie case is established, the approach of the court in the matter of bail, is not that the accused should be detained by way of punishment but whether the presence of the accused would be readily available for trial or that he is likely to abuse the discretion granted in his favour by tempering with the evidence. 18. The circumstances which have been brought into focus by the respondents as also by the learned Sessions Judge, Samba are that the accused persons tried to influence the investigation at the initial stage. The post mortem was got conducted by the Board only through the intervention of the Dy. Commissioner. Nothing has been revealed nor any material has been shown by the prosecution or by the learned Principal Sessions Judge to substantiate this plea. It is mere bald assertion, which cannot be accepted unless there is some material to that extent. 19. Regarding the question of influencing the witnesses, it be seen that material witnesses are parents and brothers of the deceased, which cannot be influenced. Mere allegation that accused persons are influential is not sufficient unless there is some material to that extent. 20. I, therefore, allow this bail application and direct the accused to be released on bail for a period of four months subject to their furnishing of bail bonds to the tune of Rs.30,000/- each with two sureties of the like amount to the satisfaction of the learned Principal Sessions Judge, Samba. 20. I, therefore, allow this bail application and direct the accused to be released on bail for a period of four months subject to their furnishing of bail bonds to the tune of Rs.30,000/- each with two sureties of the like amount to the satisfaction of the learned Principal Sessions Judge, Samba. However, the accused are granted bail on the following conditions:- (i) That the accused persons shall not leave the jurisdiction of learned Principal Sessions Judge Jammu and Samba; (ii) That the accused shall not influence the witnesses or intimidate them who are yet to be examined; (iii) In case prosecution collects any material during the period the accused-petitioners are on bail, that they have influenced the witnesses or tried to intimidate the complainant, the prosecution would be well within its right to move an application for cancellation of the their bail. Any observation made hereinabove shall not influence the trial court. Disposed of in the terms mentioned above.