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2018 DIGILAW 165 (RAJ)

Arvind v. State of Rajasthan

2018-01-12

P.K. LOHRA

body2018
JUDGMENT P K Lohra, J —Accused petitioner has laid this second bail application under Section 439 Cr.P.C., arising out of FIR No.26/14, registered at Police Station Sanderao, District Pali. 2. In the FIR aforesaid, besides petitioner, three more accused persons are charged for offences punishable under Sections 498- A, 304-B read with 120-B IPC. The first bail application of the petitioner bearing No.3454/17 was dismissed as not pressed on 9th of August 2017. 3. Arguing on this second bail application, learned counsel for the petitioner submits that after rejection of first bail application there is substantial change in the circumstances inasmuch as upon completion of investigation charge-sheet in the matter has been filed. Learned counsel contends that at the threshold police after investigation filed charge-sheet against accused persons for offence under Sections 279 and 304 IPC but upon consideration of said charge-sheet, Addl. Chief Judicial Magistrate, Sumerpur, without hearing the petitioner, ordered further investigation, which is per se bad in law. Elaborating his submissions in this behalf, learned counsel would contend that outcome of further investigation in the form of charge-sheet against the petitioner for offence punishable under Sections 498-A, 304-B/120-B and 406 IPC is a glaring example of embellished projection of the alleged criminal delinquencies of the petitioner. 4. It is also argued by learned counsel that co-accused Ms. Teejo Bai is granted benefit of pre-arrest bail and the case of petitioner is not distinguishable from her. Learned counsel has argued that during investigation no incriminating material is recovered from the petitioner and the allegations against him of subjecting deceased Ms. Urmila to cruelty or harassment in connection with demand of dowry, soon before her death, are absolutely vague and unspecific. Learned counsel, therefore, urged that prima facie offence under Section 304-B IPC is not made out. Mr. Purohit, learned counsel for the petitioner has also raised serious doubts about FSL report dated 1st of June 2015, wherein portions of visceras indicated positive test for the presence of organo phosphorous insecticide. 5. Learned counsel contends that visceras were preserved as early as on 17th of February 2014 and were sent for FSL examination on 25th of November 2014, i.e., after almost 9 months from the date of autopsy, and chemical analysis of visceras more than 6 months thereafter, further raises serious doubts about genuineness of the preserved visceras. 5. Learned counsel contends that visceras were preserved as early as on 17th of February 2014 and were sent for FSL examination on 25th of November 2014, i.e., after almost 9 months from the date of autopsy, and chemical analysis of visceras more than 6 months thereafter, further raises serious doubts about genuineness of the preserved visceras. Learned counsel further submits that even if it is assumed that chemical analysis report of visceras is suggestive of positive test for presence of organo phosphorous pesticide, then too negative test of the pocket recovered from the person of deceased for metallic poisons; cyanide alkaloids, barbiturates and tranquilizers, has prima facie casted doubts on the FSL report of viceras. Lastly, learned counsel has urged that completion of investigation and incarceration of the petitioner since 3rd of February 2017 is yet another mitigating circumstance for enlarging him on bail. 6. Per contra, learned Public Prosecutor has vehemently opposed the bail application. It is argued by learned Public Prosecutor that further investigation was ordered by Addl. Chief Judicial Magistrate after considering charge-sheet for offence under Sections 279 and 304-B IPC and during further investigation requisite incriminating evidence has come to the fore for chargesheeting the accused-petitioner for serious offence under Section 304-B/120-B IPC and offence 498-A IPC, and therefore, this second bail application of the petitioner is liable to be nixed. It is also submitted by learned Public Prosecutor that though chargesheet in the matter has been filed against three accused persons including petitioner but against one accused Gama Ram investigation under Section 173(8) Cr.P.C. is still pending. Lastly, learned Public Prosecutor has argued that submission of chargesheet has prima facie not furnished any ground for grant of bail to the petitioner inasmuch as there is no change in the circumstances after rejection of first bail application much less substantial change in the matter. 7. Learned counsel for the complainant, Mr. Vineet Jain, while reiterating arguments of learned Public Prosecutor, submits that allegations in the FIR about demand of dowry and unnatural death of deceased Ms. Urmila, within seven years of matrimony, is prima facie sufficient to constitute offence under Section 304-B IPC. Mr. Jain further contends that initially investigation was per se shoddy inasmuch as autopsy report of the deceased is conspicuously silent about cause of death and there is no visible sign of any injury on vital part of the body. Urmila, within seven years of matrimony, is prima facie sufficient to constitute offence under Section 304-B IPC. Mr. Jain further contends that initially investigation was per se shoddy inasmuch as autopsy report of the deceased is conspicuously silent about cause of death and there is no visible sign of any injury on vital part of the body. He would, therefore, urge that, in absence of any grievious road accident injury, it is a clear case of unnatural death of Ms. Urmila or castrated by the accused persons including the petitioner. Mr. Jain further submits that in that background the learned Addl. Chief Judicial Magistrate has rightly ordered for further investigation and the FSL report of visceras sufficiently proves that it is not a case of accidental death but death by consumption of organo phosphorous insecticide. With these submissions, learned counsel Mr. Jain has craved for rejection of second bail application. 8. I have bestowed my consideration to the arguments advanced by rival counsels and perused the materials available on record. 9. The argument of learned counsel for the petitioner, that after rejection of first bail application there is material change in the circumstances, namely, completion of investigation and filing of charge-sheet, appears to be quite alluring, but the same cannot be examined in isolation to the available material and alleged criminal delinquencies of the petitioner. 10. While it is true that autopsy report is conspicuously silent about cause of death, but, then prima facie the nature of injuries found on the body of deceased are not satisfying the test of injuries suffered by an individual thrown from vehicle. Normally, if someone is thrown off the vehicle, then the incumbent would be flung to the ground, frequently head first. Otherwise also, nature of injuries are determined by the part of body that sustains the impact, the angle of impact and the object struck. The possibility of fracture of the part of body that sustains the impact is natural. In the instant case, the injuries are simple in nature, mostly abrasions. Therefore, in that background, the learned Addl. Chief Judicial Magistrate has rightly ordered further investigation. It is not in dispute that unnatural death of Ms. Urmila has occasioned within seven years of matrimony and allegations of perpetrating cruelty and harassment to her by petitioner and other accused persons with demand for dowry are also clear in the first information report. 11. Chief Judicial Magistrate has rightly ordered further investigation. It is not in dispute that unnatural death of Ms. Urmila has occasioned within seven years of matrimony and allegations of perpetrating cruelty and harassment to her by petitioner and other accused persons with demand for dowry are also clear in the first information report. 11. Some other significant facts unearthed during investigation are also prima facie indicating unnatural death of Ms. Urmila. At this juncture also, Court cannot overlook the availability of Life Insurance policy in the name of deceased with petitioner as nominee and deposition of 6 months premium to renew it just 3 days before her death. Moreover, during investigation, FSL report of the visceras procured by the prosecution gave positive tests for presence of organo phosphorous insecticide. The insecticide, as per study, is acutely toxic to humans and widely used in agriculture, the home, gardens and veterinary practice. The organic phosphates are most common causes of poisoning worldwide. Therefore, in that background, espousal of cause for grant of bail by learned counsel for the petitioner in his second attempt with a plea of material change in the circumstances, has not impressed me. Consequently, I feel disdained to accede to the prayer of the petitioner. In view thereof, the instant bail application fails and same is hereby rejected.