Parveen Malhotra vs State
1990 Latest Caselaw 159 Del

ORDER

1. Sentiments and emotions have no part to play, in the judicial pronouncements. The judicial discretion cannot be allowed to be swayed by emotions and indignation even in cases where it is alleged that the accused has committed a grave offence.

2. Bride burning is undoubtedly a very grave and heinous crime. In bride burning cases even death sentence may not be improper. Undoubtedly, persons who perpetuate such barbaric crimes without any human consideration, on proof of guilt, deserve the extreme penalty so that it may operate as a deterrent to other persons from committing such anti-social crimes. This, in brief, is the ratio of various decisions relied on behalf of woman organisation while vehemently opposing the grant of bail to the petitioner.

Facts :

3. Petitioner named Parveen, his father, mother and sister are being prosecuted for offences under Sections 498A, 302 and 120B IPC. Parveen and deceased Shalini were married on 4th December 1987. Shalini received burn injuries at about 10 p.m. on 21st April 1989. The incident of burning took place at premises No. A-32, defense Colony, New Delhi, namely, office of Parveen. Shalini was admitted to Ram Manohar Lohia Hospital on 22nd April 1989 at about 12.15 a.m. where she succumbed to her injuries on 28th April 1989. Petitioner along with his parents and wife Shalini was residing at another premises in the same Colony i.e. A-111, defense Colony, New Delhi. The residential premises are stated to be about 200 yards away from the office premises.

4. The father and mother of the petitioner were released on bail pursuant to orders made by Santosh Duggal J. on 4th October, 1989. The sister of the petitioner was released on bail pursuant to orders made by Additional Sessions Judge on 17th October 1989. The petitioner is in custody since 24th April 1989. As the application of the petitioner for bail was rejected by Additional Sessions Judge, he has filed the present application under Section 439 Cr.P.C. seeking bail.

5. The prosecution version, in brief, is that on the fateful day Parveen fought with Shalini and then went to his office. Shalini followed him there. In office also the fight ensued and Parveen used bad words for Shalini and even slapped her. Shalini had gone to the office to persuade Parveen to return home. Parveen told Shalini that he will not come home till she leaves the house. On that Shalini told him that if he will not return home she would die. Parveen is alleged to have told Shalini that he does not care about her and she may die. Shalini poured on her whisky from the bottle from which Parveen was drinking and told Parveen that still he may think. The case of prosecution is that the whisky was poured by Shalini on herself thinking that Parveen would mend his ways and not with the intention to burn herself. It is further alleged that Parveen told Shalini that if she was afraid of burning herself, he will burn her and he then lit the matchstick and set her on fire. The landlord came from the down stairs and rang bell but Parveen did not open the door. Shalini requested Parveen for being taken to the doctor but Parveen did not. Shalini then opened the door and ran down Stairs. At that time she was wearing Parveen's shirt. Shalini was taken to hospital in a taxi, by Parveen and his mother and on way she was told by her mother-in-law that she should not tell anything to anybody and should say that it was accidental fire and threatened her that otherwise it will not be good for Shalini as well as her sisters too. Prosecution case is that the fire was not accidental and Shalini was burnt by her husband. The case of the Prosecution mainly rests on the statement given by Shalini to one Kamleshwar who is alleged to have made a video cassette containing the said statement.

6. Earlier on 22nd April 1989 Shalini made two statements before Sub Divisional Magistrate and one statement before ASI Sukh Ram, inter alia, stating that she had set fire herself with the matchstick. According to prosecution the said statements were given because of threat which mother-in-law had given to Shalini.

7. The intervention application filed by six women organisations and father of the deceased through Ms. Rani Jethmalani, advocate, was dismissed by this Court on 20th February 1990. Miss. Jethmalani, filed another application (Cr. Misc. 389/90) on behalf of Mahila Dakshita Samiti seeking leave to assist the court. Mr. R. P. Lao, learned Public Prosecutor stated that he has no objection to Ms. Jethmalani assisting the court so long as counsel acts under his directions. Ms. Jethmalani agreed to the suggestion. Besides counsel for the parties I have also, heard Ms. Rani Jethmalani and have given thoughtful consideration to elaborate submissions, made before me.

8. According to M.L.C. Shalini was got admitted in R.M.L. Hospital at 00.15 a.m. (12.15 a.m.) on 22nd April 1989 by her husband. The M.L.C. also contains an endorsement said to have been made at 3 a.m. by Dr. P. K. Misra to the effect that Shalini is fit to make statement. It also contains another endorsement to the effect that she complains of alleged history of sustained burn injury (accidental).

9. The first statement of Shalini on record purports to have been recorded on 22-4-89 at 8.30 a.m. by the S.D.M. The relevant part of her first statement is that -

"Last night, at about 10.30 p.m. my husband was taking Whisky. I got angry and could not bear it. I poured whisky on myself, then set myself on fire. It is not a case of Dowry."

10. On 22nd April 1989 at about/4.20 p.m., D.D. No. 7A was recorded at P.S. defense Colony, to the effect that Shalini wants to give her statement again and the I.O. be informed. A requisition was sent by I.O., A.S.I. Sukh Ram to S.D.M. intimating him that a message had been received from the hospital that Shalini wants to give statement again and requesting him to come for the said purpose. However, from the record, it appears that ASI Sukh Ram himself recorded her statement about 6 p.m. and the relevant part thereof reads as under :-

"My husband after taking whisky keeps on fighting with me and beating me; My mother-in-law, father-in-law and sister-in-law have been harassing me and beat me; My sister-in-law comes to my house almost daily. My husband drinks a lot and is doing business of property dealer and has his office at A-32, defense Colony. Today since evening he was fighting with me and my father-in-law and mother-in-law were siding with him. At about 10 p.m. my husband again after fighting with me went to his office. I followed him to the office. After going to office he started drinking and started fighting with me and beating me; Getting fed up With him I picked up the whisky bottle from which he was drinking, poured it on myself and with the matchbox that was lying there for lighting cigarettes, I burnt myself. I have burnt myself after being fed up with my father-in-law, mother-in-law and sister-in-law. Action, be taken against them. They are responsible for this incident. They have troubled me so much that they never gave me food and said that what dowry has been given by your mother and father.

The case under Section 498A was registered at 6.40 p.m. on the basis of the aforesaid statement.

11. Pursuant to the requisition sent by A. S. L Sukh Ram another statement appears to have been recorded by S.D.M. on 22-4-89 between 6.30 and 7.15 p.m. The relevant part of this statement is as under :-

"I want to change my statement as in the morning I was not conscious enough. Now I am fully conscious and I want to give a statement. I have burnt myself because my husband daily fights with me, beats me and abuses me. Yesterday evening my friend Cukky Babi had come to the house to ask about my welfare when my husband came. He started abusing me and asked me to tell my friend not to come to the house. I told him that when you come with drunkard friends, do I say so. At about 8.30 p.m. after pushing me he went to his office. I went after him to pacify him. He was drinking whisky. I requested him not to drink. He called me a prostitute and gave me a slap, I fell on sofa and started bleeding. The fight intensified during arguments and I said that I will die. I have tolerated enough of your torture. He said if you do not die, I will show you how to die. I told him that if you do not come home I will die here only. He said that I do not bother about you, I picked up the bottle of whisky, poured it on myself and lit myself on fire with that matchbox. The fire flared up and I cried. He tore my clothes and said do not worry, nothing will happen. Meantime, landlord Sardarji came and rang the bell but he did not open the door. Then I myself after putting on the clothes opened the door. Sardarji then brought me down and called for a doctor. Sardarji's son brought the Taxi. My husband and my mother-in-low brought me to the hospital. This hospital has taken me with lot of difficulty. My mother-in-law was standing next tome and, therefore, I said that I was preparing food at home and as such caught fire. My husband has still not come. I have nothing else to say."

12. Apart from the aforesaid statements, the statement of various witnesses were recorded under Section 161 Cr.P.C. In the statements of parents of Shalini recorded on 22-4-89, they more or less gave same version as appears from the statement given by Shalini to A.S.I. Sukh Ram and the second statement given to S.D.M. However, on 5th May 1989 supplementary statements of the parent of Shalini were recorded. The mother of Shalini, inter alia stated that after they had reached the hospital police and S.D.M. recorded statement of Shalini : when she learnt that Shalini had given statement that she had burnt herself, she did not believe and then she and her husband asked Shalini who told them that she gave the earlier statement under the pressure of her husband and in-laws as they had given the threat to her that if she does not give that statement they will spoil the life of her parents and sisters. Save and except to the extent of the actual lighting of matchstick, in other aspects the Video recorded statement and earlier statements of Shalini in substance discloses almost similar version. The relevant part of video recorded statement of Shalini reads as under :

"Kamaleshwar : Daughter Shalini, how this thing happened ?

Shalini : He used to beat me from the beginning, from the first night he used to beat me. He used to beat me in front of everybody in front of his sister and brother-in-law. We went to Europe for honeymoon, there we stayed at the place of my uncle, then went to Paris to the house of his Aunt. There he used to beat me very much always. He kept me as a servant, never gave food. I used to eat at my parent's house. I was not allowed to go anywhere.

Kamleshwar : Daughter Shalini, don't worry.

Shalini : Everybody used to call me mad. Seniors, juniors, children, all used to call me mad. Nobody prevented them. He used to beat me day and night, used to abuse me always. Now I am burnt, my father-in-law and mother-in-law came and told "Why you have not told us ? Then I told that have you asked me ever that I would tell you. That day also my sister-in-law came there, my father-in-law and mother-in-law also were in the house. They threatened me, abused me, in the meanwhile he left the house and came to the office. I also followed him.

I came to him and told him to return to home. He told "I would not go home till you leave the house." I told "if you don't go home I would die". He told "who cares for you, upon your Parents you die." I poured the whisky from the bottle (from which he was drinking) on myself and told "still you think (Abh Bhi Soch Lo)" He told that if you are afraid to burn yourself let me burn you. He then lit the matchstick and set me afire. I cried loudly. The landlord Sardarji came from the downstairs rang the bell, but he did not opened the door. I requested, him to take me to the doctor, but he won't.

Then I opened the door and ran towards downstairs. I was wearing his shirt. Then I told Sardarji "Uncle, please save me." He called doctor but no doctor came. Then he told "let us take you to hospital in taxi". In the meantime, my father-in-law and mother-in-law came over there. When anyone asked them, they told that they knew nothing as they were in the house. They used to torture me extremely, catching my hair they used to parade me up and downstairs and beat me extremely. Nobody objected. Whatever his sister used to instruct, he used to do that."

Shalini : They did not give me anything, no prestige, no home, no food, When I could not do work they used to tease me.

Kamaleshwar : Daughter Shalini, earlier you stated something else. See under which compulsion or helplessness you had given such statement ? What are you thinking now what you want to say truly ?

Shalini : I was fed up with them very much. Albiet I had poured the whisky on myself but I had no intention to burn myself. I did so (poured whisky on myself) thinking that he would mend his way, but he lit the matchstick and set me ablaze.

Kamaleshwar : You had no intention to burn yourself ?

Shalini : I just wanted to threaten him.

Kamleshwar : O.K. then why you earlier given statement that you caught fire accidentally ?

Shalini : No. The fire was not accidental. When, they were bringing me to hospital my mother-in-law told "don't tell anybody anything. Tell that it, was accidental fire otherwise it will not be good for you as well as for your sister too."

13. On prayer of learned counsel for State video cassette was played in court. It's transcript is also on record.

14. The video tape contains the statement only of Shalini but also of Parveen, his maternal grand mother, Shalini's parents, Dr. Luthra, ASI Sukh Ram, Smt. Raj Laxmi SHO, defense Colony, Police Station and that of the landlord of premises where the incident took place. Learned counsel for the State on being asked as to when the statements as shown in the video cassette were recorded, stated that statement of accused Parveen was recorded in one go on 25th April 1989 and statement of Shalini was recorded in one go on 26th April 1989. There is nothing on record to show when the statements of other aforesaid persons were recorded. It was telecast by Doordarshan on 3rd May 1989 as a programme 'Jalta Sawal'. The cassette does not show the statement in the order in which the statements were recorded. The cassette first shows the preface or the background. After the preface the dialogues between Kamaleshwar and others have been shown in the following order; Kamaleshwar and Parveen Kamaleshwar and the landlord, Kamaleshwar and Parveen, Kamaleshwar and Shalini, Kamleshwar and Shalini's mother, Kamaleshwar and Shalini's father, Kamaleshwar and maternal grand mother of Parveen, Kamaleshwar and Shalini, Kamaleshwar and ASI Sukh Ram, Kamaleshwar and Smt. Raj Laxmi, Kamaleshwar and Parveen, Kamaleshwar and Dr. Luthra and finally between Kamaleshwar and Parveen. It is obvious that after recording on different dates, the tape was edited and as stated above was shown as a programme 'Jalta Sawal' on Television, by Doordarshan. The cassette displayed in court is said to he same which was telecast by Delhi Doordarshan. In one of the scenes Shalini is shown as dead. On being asked Mr. Lao stated that it was of course a camera trick as the recording was done on 26th April 1989 i.e. before the unfortunate death of Shalini.

15. In support of this application, Mr. Mathur, learned counsel for the petitioner contended that insofar as the offence under Section 120B IPC is concerned, the other alleged conspirators, namely, petitioner's father, mother and sister have already been enlarged on bail and thus the petitioner is also entitled to be so released. In respect of offence under Section 498A IPC counsel contended that apart from the fact that allegations do not even make out a case under the said provisions in any case, the role attributed to the petitioner and other accused is substantially the same and further the punishment prescribed is three years and the petitioner is in custody for over 10 months and is thus entitled to be admitted to bail.

16. In regard to offence under Section 302 IPC, counsel contended that the statements of Shalini recorded on 22nd April 1989 and the statements of the parents recorded on the same date, show that death was suicidal and not homicidal. It was further contended that in law full and complete dying declaration without any addition, alteration or subtraction has to be produced before a court. It was surged that in this case it has not been done as only edited copy of video recorded statement has been produced and, therefore, assuming without conceding it to be a dying declaration it cannot be looked as full and complete dying declaration has not been produced and it cannot be relied upon to deny bail to the petitioner. It was further contended that glaring contradictions between the statements recorded on 22nd April 1989 and video recorded statement itself justify the release of the petitioner on bail. Counsel also contended that the alleged reason given in video recorded statement for changing the earlier statement on the face of it, is not correct as in the statements recorded on 22-4-89 Shalini had made accusations against the petitioner and his parents and thus, prima facie, it cannot be said that the statements made on 22nd April 1989 by Shalini were on account of alleged threat given by Parveen's mother. If any threat had been given, counsel contended, Shalini would not have made any accusation against petitioner and his parents. Further contention was that video recorded statement, at best, shows commission of offence under Section 304A IPC and not offence under Section 302 IPC. It was also contended that the second statement recorded by SDM, shows that Shalini wanted to change, the statement given to the Police in the morning and not the statement given to SDM in the morning, and it was urged that the Police appears to be withholding some statement recorded on the morning of 22nd April 1989 after doctor certified at 3 a.m. that she is fit for making statement. Regarding the statement recorded by ASI Sukh Ram, counsel contended that the said act of the police is nothing but a police padding, as otherwise where was, the question of ASI recording statement at 6 p.m. when he had already sent requisition for SDM, who appears to have recorded the statement from 6.35 p.m. to 7.15 p.m.

17. Mr. Mathur strenuously relied on the following circumstances :-

1. The prosecution case that the petitioner and his parents left hospital soon after getting Shalini admitted shows that they could not exert any influence on Shalini.

2. Shalini parents were present in hospital from 22-4-89 onwards showing that they could influence her.

3. In the, second statement recorded by SDM and in the statement recorded by ASI, shalini made accusations against the petitioner, his, father, mother and sister and, therefore, the alleged reason that because of threat of mother Shalini did not give correct version earlier is not correct.

4. Even mother and father of the girl in their statements recorded on 22-4-89 while making accusation against all family members of the husband stated that she had burnt herself.

5. The landlord and his son did not state that the petitioner had burnt Shalini.

6. Shalini went to office on her own.

7. She herself poured whisky on her body.

8. When soon after the incident landlord came she was wearing shirt of the husband.

9. Husband's hands were burnt.

10. There is nothing to show that between 22-4-89 and 26-4-89 Shalini expressed any desire that she wanted to change earlier statements.

18. Learned counsel for the petitioner vehemently contended that the circumstances of the case show that the petitioner and his Parents could not in any manner, influence the mind of Shalini as they had left, the hospital as per prosecution case and only Shalini's parents could influence her mind and were interested in Shalini changing the statement and implicating the petitioner. It was urged that while appreciating the video recorded statement these circumstances have to be kept in view.

19. The application has been vehemently opposed by Mr. R. P. Lao, learned Public Prosecutor and Mrs. Rani Jethmalani, Advocate. The principles in regard to scope and nature of powers under S. 439 Cr.P.C. are well settled. The nature and gravity of offence is one of the relevant factors to be considered while deciding the bail applications. In the recent time there has been rise in bride burning cases and these cases are required to be dealt with strictly while Considering bail applications. The limitation of S. 437(1) of Cr.P.C. are not applicable while granting bails in exercise of discretion under S. 439 Cr.P.C. though it does not mean that courts, under S. 439 of the Code, have blanket powers to arbitrarily pass orders granting bails. Though discretion under S. 439 is unfettered but it has to be exercised judicially and not arbitrarily. The overriding considerations in granting bail which are Common both in case of S. 437(1) and S. 439(1) are, the nature and gravity of the circumstances in which the offence is committed; the position and the status of the accused with reference to the victim and the witnesses, the likelihood, of the accused fleeing from justice; of repeating the offence; of jeopardising his own life being faced with a grim prospect of possible conviction in the tampering with witnesses; the history of the case as well as its investigation and other relevant grounds which, in so many variable factors, cannot be exhaustively set out Gurcharan Singh v. State, AIR 1978 SC 179 : (1978 Cri LJ 129). The court has not to investigate facts and comment on merits. The courts can, however, incidently peruse the evidence with a view to examine the question of grant or refusal of the bail with reference to principles governing the release or detention pending the proceedings. The court has to consider the cumulative effect of all the circumstances while adjudicating the bail applications.

20. While opposing the application it was contended that Shalini was subjected to cruelty, humiliation and insults by the petitioner, his parents and sister and thus petitioner is not entitled to be enlarged on bail. According to respondent the statements recorded on 22-4-89 that Shalini burnt herself have to be appreciated bearing in mind that the terror of mother-in-law and cruelty etc. to which, she had been subjected earlier. The video recorded statement, according to respondent's counsel, is best evidence and it also explains the circumstances under which the earlier, statements were given by Shalini. It was further contended that it is for the trial court weigh all the circumstances on production of evidence. It was further contended that the conduct of the petitioner does not justify his being released on bail. He had been torturing Shalini. He was also responsible for tampering with evidence inasmuch as he removed all traces of the crime from the scene. It was submitted that the offence for which the petitioner is being prosecuted is grave and heinous and thus the petitioner is not entitled to be enlarged on bail. It was contended that even a part of dying declaration can be acted upon, depending upon facts and circumstances of each case. On the question of evidentary value of dying declarations certain decisions were cited by learned advocates. These questions will be gone into by the trial court while appreciating the entire evidence at the appropriate stage. Broadly principles derived from decisions cited are as set out hereinunder.

21. Normally it is necessary that whole of the statement made by deceased must be laid before the court without tampering with its terms or its tenure. The dying declaration in the form of questions and answers and in the words of maker of the declaration stands on a much higher footing then the dying declaration which depends upon the oral testimony. In order to pass the test of credibility a dying declaration has to be subjected to a close scrutiny keeping in view the fact that the statement has been made in the absence of the accused who had a no opportunity of contesting the veracity of the statement by cross examination. Various circumstances including whether the statement has been made at the earliest opportunity and was not the result of tutoring by interested parties have to be kept in view while considering evidentiary value of the dying declaration. If basically there is credibility in dying declaration it should not be discredited only for shortfalls here or there. Regarding the evidentiary. Value, of part of a dying declaration the legal position is that if evidence shows that part of dying declaration is correct and trustworthy, the court can act upon such part even though another part of the dying declaration has not been proved to be correct. However, in cases where part of dying declaration which is not found to be correct is so indissolubly linked with the other part of the dying declaration that is not possible to severe the two parts, the court would be justified in rejecting the whole of the dying declaration.

22. Learned counsel for the petitioner contended that video recorded statement should not be considered even at this stage as only edited tape has been filed which shows that there has been tampering with the statement of Shalini allegedly recorded by Kamaleshwar on 26th April 1989. Counsel further contended that at this stage it cannot be said as to what part of statement was edited and to what extent and the whole statement having not been produced, the edited tape should be kept out of consideration. On the other hand, counsel for respondent contended that tape as produced, prima facie, proves the guilt of the petitioner and thus he is not entitled to bail. Counsel for the petitioner also submitted that it has not been explained whether any permission was taken by Kamaleshwar either before record in the statement of Shalini or Parveen and if so from which authority and when and who told Kamaleshwar about details of earlier statements of Shalini. Mr. Lao, counsel for the State submitted that oral permission was to Kamaleshwar by the Commissioner of Police and the Medical Superintendent of the hospital.

23. Petitioner counsel further contended that even in statement under Section 161 Cr.P.C. Kamaleshwar has not said that the tape as taken by police from Chetan Vyas is the one of which he had done the recording. The cassette placed on record appears to have been taken by the police from Sh. Chetan Vyas of Doordarshan who stated that an unabridged video recording copy is being given to Police. He, of course, stated that the original recording will be produced in court. Petitioner's counsel contended that considering the aforesaid infirmities coupled with inherent contradictions between statements recorded by SDM and ASI on one hand and the video recorded statement on the other, as also other circumstances narrated hereinbefore the petitioner is entitled to be released on bail.

24. The main thrust of arguments of Mr. Lao and Ms. Jethamalani was that most of the circumstances relied by the petitioner can be considered only on production and appreciation of evidence and the said circumstances are not relevant at this stage. It was submitted that the court cannot appreciate evidence at this stage. Regarding the alleged contradictions in the statements, it was also contended that the earlier statements were given by Shalini as her mind was influenced by threat given by mother-in-law and cruelty to which she had been subjected. It was also contended that the conduct of the petitioner does not entitle him to get bail and he is also likely to tamper with the evidence. It was further contended that the video recorded statement was best piece of evidence as it was in the form of questions and answers and did not depend on any oral testimony. Regarding to two statements recorded by SDM and one by ASI, it was contended that those statements were weak pieces of evidence as compared to the video recorded statement which should be preferred and not the earlier statements. It was also contended that part of the earlier statements, where Shalini stated about the Cruelty to which she was subjected was severable from the rest of the statement and as such in so far as the cruelty is concerned, earlier statements can be acted upon and on the question as to who lit the fire the best statement to be acted upon is as contained in the video recording and not the earlier statements. Regarding burns on the hands of the petitioner, it was submitted that those were simple burns which cannot explain the absence of the petitioner from hospital from 22nd April 1989 onwards. It was contended that the conduct of the petitioner in keeping away from the hospital from 22nd April 1989 onwards disentitles him to bail. He is not entitled to bail, according to counsel for the respondent, also for the reason that he did not come down with Parveen when she came to the landlord. Counsel for the petitioner contended that a bare reading of the statement of the landlord under Section 161 Cr.P.C. shows that the petitioner had come down and had gone to get a doctor. It was also pointed out that in the earlier dying declarations there were no witnesses. The same were not in questions answers form and thus, at this stage, much reliance cannot be placed on the said statements. It was submitted that it was a clear case of barbaric crime having been committed by the petitioner by burning his wife and he is thus not entitled to any discretion by grant of bail.

25. Counsel for the petitioner also contended that the act of Kamaleshwar in recording statement and getting it published amounted to contempt of court and thus the alleged statement recorded by him ought not be looked into. It was urged - that Kamaleshwar ought to have known that publication of the statement allegedly recorded by him would impede a fair trial which was in contemplation. In support of the contention counsel relied on a decision of Qeen Bench's in Attorney General v. News Group Newspapers Ltd. (1988) 2 All ER 906, holding that the publication of articles in newspaper had posed a real risk of prejudice to a fair trial to the accused. I do not agree with contention of the learned counsel. It cannot be said that video recorded statement should not be considered on the ground urged as at this stage this court is not seized of any contempt matter. As and when contempt action is initiated and any such question raised in appropriate forum, it will, of course, be gone into in accordance with law.

26. While rejecting the contention of petitioner's counsel as aforesaid, I, wish to express strong disapproval in respect of display of cassette on, Doordarshan on 3rd May 1989. Prior to that the case had been registered, accused arrested and produced before the Magistrate and remanded to custody. Around that date statements of various witnesses during investigation were recorded. It is obvious that around 3rd May 1989 investigation must have been at a Crucial stage. It could be comprehended that cassette may be an important piece of evidence and may come up for consideration before a court of law. Doordarshan ought to have exercised restraint and not displayed it. At this stage I wish to say nothing more than that-let there be trial by court and not by media, be it Doordarshan or Press.

27. Though at this stage this court is not in a position to appreciate evidence or make any comment on the merits of the case and rather that course ought to be avoided yet I do wish to state that the present case is somewhat unique in few respects. I say so because in most of other bride burning cases generally the allegations are that the bride was locked in a room or kitchen; one or more persons forcibly caught hold of her; some one poured kerosene oil or some such substance on the bride and thereafter she was set on fire. In the present case, however, few aspects on which prima facie there is no dispute are that Shalini went to the office on her own; she herself poured whisky, when soon after the incident the landlord came she was wearing husband's shirt and the husband's hands were burnt though simple burns according to prosecution. Whether the death of Shalini was suicidal or homicidal or whether it is a case of rash and negligent act will be decided on appreciation of all the facts and circumstances of the case and the evidence produced before the trial court but prima facie accepting the entire case of prosecution it cannot be disputed that no pre plan was hatched by petitioner to burn Shalini on 21st April 1989, and whether death was homicidal, suicidal or accidental, it was at the spur of moment.

28. The elaborate submissions have been noticed in this order in fairness to counsel for the parties though neither the evidence can be appreciated at this stage nor any findings given nor is it appropriate to deal with each circumstance separately. At this stage combined effect of all the circumstances is to be seen while deciding which way the discretion should be exercised. Without intending to comment on merits, prima facie, it seems that during trial prosecution will have to explain various aspects of the case.

29. It is also not the case where the petitioner is likely to flee from justice. He has roots in society. Regarding apprehension, of tampering of evidence this court cannot loose sight of the fact that parents and sister of the petitioner are already on bail and the record does not justify the apprehension of the State. Counsel for the petitioner also contended that the prosecution in its wisdom has not invoked section 201 IPC in the challan filed before the court.

30. It is unfortunate that Shalini lost her life at prime of the youth and video, cassette depicts a very pathetic story. I must also state that the concern and anxiety displayed by women organisations is appreciable. After watching the cassette and hearing counsel for women organisation, for a while, one is moved and swayed by emotions which the organisation did attempt to bring in to some extent, but when all the circumstances are adverted to and their cumulative effect seen, which way the discretion should be exercised becomes clear.

31. Thus having regard to totality of all circumstances the petitioner is entitled to be enlarged on bail and while so directing it is clarified that the trial court will not be bound by any observations made in this order.

32. For the reasons stated above, I direct that the petitioner be enlarged on ball on his furnishing bail bond in the sum of Rs. 1 lakh with one surety of the like amount to the satisfaction of the trial court. It will be a condition of bail that the petitioner shall not leave India except with the permission of the trial court and shall regularly attend proceedings before the trial court and shall not tamper with evidence.

33. Order accordingly.