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2012 DIGILAW 1446 (RAJ)

Sobha v. State of Rajasthan

2012-06-15

SANDEEP MEHTA

body2012
Hon'ble MEHTA, J.—Heard learned counsel for the parties. 2. The instant bail application has been filed under Section 439 Cr.P.C. The petitioner has been arrested in connection with FIR No. 42/2012, registered at Mahila Thana Police Station, Jodhpur for the offences under Sections 304-B, 316 and 498-A IPC. 3. Learned counsel for the petitioner contents that in this case, the petitioner's son Kushal Chand was married to the deceased Pratibha. Learned counsel submits that Pratibha's clothes caught accidental fire on 4.2.2012, upon which, she immediately admitted at the burn unit of the Mahatama Gandhi Hospital, Jodhpur. Her dying declaration was recorded by the learned Judicial Magistrate on the same day. In the said dying declaration, she stated that when she was standing near the refrigerator, suddenly, her sari caught fire. The dying declaration of deceased Pratibha reads as under:- ^^egkuxj eksckbZy eftLVªsV] tks/kiqj egkuxj ihBklhu vf/kdkjh % Jh x.kir yky fo'uksbZ RJS, dSEi % egkRek xka/kh vLirky okMZ % cuZ ;wfuV] M-5 cSM ua- fnukad% 4-2-2012 oDr 10-00 Pm Fkkuk % lnj dksrokyh tks/kiqj egkuxj e`R;q dkfyd dFku uke & izfrHkk O;kl firk dk uke % fo".kqnRr tkfr & czkg~e.k ifr dk uke % dq'kky fuoklh % xqykc lkxj] tks/kiqj ¼1½ vkids ifr D;k djrs gS\ mRrj % 'ks;j ekdsZV dk /ka/kk djrs gSaA ¼2½ 'kknh gq, fdruk le; gks x;k\ mRrj % Ms< o"kZ ¼3½ vkt vki dgka Fks\ mRrj % llqjky esaA ¼4½ vkids ifr] og vkids vkil esa dSlh curh gS\ mRrj % vPNhA ¼5½ vkt vki dSls tyh\ mRrj & eSa Qzht ds ikl [kM+h Fkh] lkM+h esa vpkud vkx yxhA vkxs esjs dks irk ughaA ¼6½ vkx yxh rc vkids ?kj ij vkSj dkSu Fks\ mRrj % lklwth] llwj th] ukuh lklwthA ¼7½ vkids ifr ?kVuk ds le; dgka Fks\ mRrj % ckgj x, gq, Fks] irk ugha ckgj dgka FksA ¼8½ vkx fdrus cts yxh\ mRrj % 'kke dks fn;k cRrh ds le;A ¼9½ vLirky dkSu ysdj vk,\ mRrj % vLirky 'kdq Hkqvk ysdj vkbZA ¼10½ vki dks llqjky esa dSls j[krs Fks\ mRrj % esjs dks Bhd Bhd j[krs Fks] dHkh dHkkj lklwth ls >xMk gksrk Fkk vkSj fdlh ls ughaA ¼11½ vkSj dqN dguk gS\ mRrj% dqN ughaA ¼12½ vki gLrk{kj dj nksxh\ mRrj % nnZ gks jgk gS eSa gLrk{kj ugha dj ldrhA ¼13½ vki fdruh i<h fy[kh gS\ mRrj % ckjgoh ikl gwaA** 4. Learned counsel submits that thereafter Pratibha continued to remain under treatment in the hospital. On the fourth day of the incident i.e. on 7.2.2012, her mother filed a written report with the SHO, Mahila Thana Police Station, Jodhpur with the allegations that her daughter was harassed for bringing less dowry by her husband, mother-in-law, sister-in-law and sister-in-law's husband. It was also alleged in the report that her in-laws set het on fire and that her statements were recorded under the pressure of her in-laws. 5. Learned counsel submits that upon such FIR being registered, the Investigating Officer moved yet another application to the CJM, Jodhpur on 7.2.2012 for recording the subsequent statement of the deceased. Such application was ultimately not pressed by the Circle Inspector on 9.2.2012. Learned counsel submits that again the Investigating Officer managed to procure an order for recording the statement of the deceased by the learned Judicial Magistrate and the deceased was examined under Section 164 Cr.P.C. on 9.2.2012 and in this statement, she alleged that her brother-in-law namely Pankaj demanded rupees three lacs from her. She further stated that her father-in-law also demanded money from her and her husband also used to taunt her on account of demand of dowry. She further stated that her mother-in-law used to live at her father's house for days together. She further stated that her father-in-law abused her after consuming liquor. When she wanted to live in her marital home, her in-laws did not permit her to enter the house. Learned counsel submits that in this statement also, there is no allegation that soon before her death, any of the accused harassed or humiliated the deceased on account of bringing less dowry. There is no specific allegation in the statement that the petitioner set fire to the deceased. 6. Learned counsel further pointed out to this Court the Bed Head Ticket of the deceased whilst she remained admitted in the hospital and urged that there is no mention in the ticket that the deceased was deliberately sat to fire by anybody. He submits that the burns received by the deceased are dry flame burns. He further submitted that none of the other accused persons named in the statement dated 9.2.2012 apart from the petitioner and the grand mother-in-law Smt. Shiv Pyari have been charge-sheeted by the Investigating Officer. He submits that the burns received by the deceased are dry flame burns. He further submitted that none of the other accused persons named in the statement dated 9.2.2012 apart from the petitioner and the grand mother-in-law Smt. Shiv Pyari have been charge-sheeted by the Investigating Officer. Learned counsel further submits that the charge-sheet has not been filed for the offence under Section 302 IPC. Learned counsel therefore urged that the petitioner who is a lady has falsely been implicated in this case. Learned counsel thus submits that the petitioner deserves to be granted bail. 7. Learned counsel further argued that the Investigating Officer has deliberately and in order to mislead the court has concealed the earlier statement of the deceased recorded by the learned Judicial Magistrate on 4.2.2012. He further submits that the fact regarding application for recording the second statement being rejected by the Court has deliberately concealed in the charge-sheet. 8. Learned Public Prosecutor had been directed to call for the Investigating Officer and the Deputy Commissioner of Police, (East), Jodhpur to explain these facts. 9. The Deputy Commissioner of Police (East), Jodhpur namely Shri Rahul Prakash appeared in the Court and submits that the Investigating Officer has committed an error in not placing on record of the charge-sheet, the said earlier statement of the deceased. He submits that appropriate departmental action shall be taken against the erring officer in this regard. 10. A perusal of the charge-sheet reveals very sorry state of affairs. The Investigating Officer had adopted the theory of pick and choose and surprisin-gly, the statement of the deceased recorded by the learned Judicial Magistrate on 4.2.2012 has been concealed and has not been placed on the record along with the charge-sheet. Such a course of action cannot be appreciated. 11. Any comments on the propriety of the action taken by the Investigating Officer by this Court is likely to effect the proposed departmental action, but it is expected that the superior officers shall take proper action in this regard. 12. Learned counsel for the petitioner has placed on record the statement of the deceased recorded on 4.2.2012 by the learned Judicial Magistrate as well as the charge-sheet filed in the case. 12. Learned counsel for the petitioner has placed on record the statement of the deceased recorded on 4.2.2012 by the learned Judicial Magistrate as well as the charge-sheet filed in the case. A perusal of the statements of the deceased recorded on 4.2.2012 and 9.2.2012 reveal that there is no specific allegation against the petitioner regarding her having harassed or humiliated the deceased on account of bringing less dowry soon before her death. The statement dated 4.2.2012 is clear to the effect that the deceased caught fire accidentally. Even in the statement dated 9.2.2012 recorded by the learned Judicial Magistrate, there is no allegation that the petitioner sat the deceased on fire. As per the post-mortem report, the deceased has received dry flame burns. Three persons were present in the house when the deceased received burn injuries namely the petitioner, the grandmother-in-law and the grandfather-in-law. The deceased expressed suspicion, regarding the fire having been set to her by the petitioner, the grandmother-in-law, the grandfather-in-law, Pankaj and Bantu. Out of these persons, only the petitioner and the grandmother-in-law have been charge-sheeted. The grandmother-in-law namely Smt. Shiv Pyari has been granted bail by the learned trial Court. 13. In view of the aforesaid discussion, this Court is of the opinion that the instant application for bail filed on behalf of the petitioner deserves to be accepted. 14. Consequently, this bail application is allowed. It is ordered that the accused-petitioner namely- Smt. Sobha wife of Shri Nemichand, who has been arrested in connection with FIR No.42/2012, registered at Mahila Thana Police Station, Jodhpur shall be released on bail provided she furnishes a personal bond of Rs. 40,000/- and two surety bonds of Rs. 20,000/- each to the satisfaction of the learned trial Court with the stipulation to appear before that Court on all dates of hearing and as and when called upon to do so till the completion of the trial.