Jayanti Pd. Goel vs Suresh Jain And Anr.
1993 Latest Caselaw 120 Del

JUDGMENT

R.L. Gupta, J.

(1) This petition has been filed for cancellation of bail under Section 439 Code of Criminal Procedure (Code for short)allowed to the first respondent by learned Asj, Shabdara, Delhi.

(2) The facts leading to the prosecution of the first respondent 1 are that Smt. Chhama Jain.tdaughter of the petitioner-complainant, was married to the first respondent (on 4-7-1991 at Shahdara. Just after .about fourmonths' it is alleged, the first respondent and his parents started harassing her for bringing insufficient dowry She was tortured and humiliated also./ THERE was a specific demand/of Rs. 15,000.00' by the first respondent. A sum of 5,000.00 was paid to him and on their inability to pay the balance amount of Rs. 10,000.00 she was alleged to have been brutally murdered along with a six months child in her womb by the first respondent, his sister and parents on 5-4-1992. A case was registered under Sections 498A/304B read with Section 34 Indian Penal Code vide Fir No. 94/1992 in Ps Vivek Vihar on 6-4-1992 on the direction of Sh. R.K. Mishra, Sdm, Shahdara. The further allegation is that without application of mind bail was granted to the respondent on13-7-1992 in an arbitrary manner without considering the facts and circumstances of the case.

(3) I have heard arguments advanced by learned Counsel for thepartics.

(4) The case was registered on the statement of the petitioner who is the father of the deceased on the allegations reproduced above. His statement was supported by his wife Smt. Om Wati, their son-in-law BhuParkash and Laxmi Devi, sister of the deceased, 0m Wati told the police that there was no other bread winner in her family except her husband and on account of their poverty they had married their daughter to the first respondent whose first wife had also died by sustaining burns. After about four months the first respondent came to their house and asked forRs. 5,000.00 from her. She gave him Rs. 200.00. After some days the deceased came to visit their house along with the first respondent and told her that her sister-in-law Savita. mother-in-law Sumitra harassed her by saying that she had neither brought clothes nor cash from her parents. She made her understand politely and asked her to go back. On the occasion of Holi which was 19/03/1992) the petitioner had gone to bring the deceased.He told her on return that the father-in-law of the deceased had asked forRs. 15,000.00 and he told them that at that time he was not in a position to give that amount and he will see it later on. Then she came to know that just after few days i.e. on 3-4-1992, her daughter died of burns and she suspected that she had been burnt to death by her in-laws. The deceased also visited the house of Bhu Parkash 2-3 times along with her husband and told them that her in-laws harassed her and gave beating to her on account of dowry. She also told them that about 2-1/2 months prior to the recording of his statement they had brought Rs. 5,000.00 from her father. She also informed him about the visit of her father a few days before Holi and that he had come hack disappointed because they did not send her with him.Similar corroboration is found in the statement of Laxmi Devi, sister of the deceased. The police also examined Champat Rai through whom the match of the deceased was settled with the respondent. He told the police furtherthat the wife of the respondent had died because of burns and he had got this match settled on entreaties of the father of the respondent. The deceased used to visit his house and used to tell him sweepingly that she had been thrown in hell by him because her in-laws used to beat her day and night and demanded dowry. He also corroborates the other witnesses regarding bringing of Rs. 5,000.00from the petitioner, the refusal of the in-laws of the deceased to send her with her father 3-4 days before Holi and so on. In the post-mortem examination the doctor also found a 32 centimeter female fetus in the womb of the deceased.

(5) As against this the statement of Sh. Ashok Kumar Goel seems to have been recorded at the time of inquest proceedings. He is a practicing Advocate in Shahdara Courts. He was informed by his relation Kusum Lata that Chhama Rani had suffered burns. He rang up police at telephone No.100 and went to her house. He saw many persons collected in the gali outside the house and found the deceased lying completely burnt in thebathroom. She was married 9-10 months before. He was not on visiting terms in that house because the marriage had been performed against theirwishes, the reason being that the first wife of the respondent had also died because of burns about two years prior to that. The last sentence which headded to his statement is that the deceased who used to come to their house had never told him about any harassment caused to her about dowry.

(6) Learned Sdm sent a memo dated 6-4-1992 to the Sho, Ps Vivek Vihar to register a case against the respondent and his parents etc. after recording the statement of the petitioner.

(7) Learned Counsel for the respondent contended that the learned ASJ was right in saying that there were two different versions at this stage before him and on the basis of the case of Ravi Kumar v. State, 1991 Crl.L.J. 2579,he was right in allowing bail to the respondent. On the other hand learned Counsel for the petitioner contended that the statement of Sh. Ashok Kumar could not be deemed to be such a statement on the basis of which it could be said that it was. not a case of demands or harassment for dowry. Moreover,he contended, that was a statement given by Sh. Ashok Kumar during inquest proceedings. On the other hand learned Counsel for the respondent urged that the statement of Sh. Ashok Kumar was also entitled to be given same weight as those of other witnesses. He is also stated to be a close relation and, therefore, prima facie learned Asj was right in saying that some witnesses did not refer to any previous torture or foul play. I do not agree with the contention of the learned Counsel for the respondent. There as on is that according to his own statement, Sh. Ashok Kumar and his family members were not happy with the marriage of the deceased to therespondent. They, in fact. wanted that such marriage should not be performed because Anita, first wife of the respondent had also died of burns in that very house about 2 years back only. This portion of the statement of Sh. Ashok Kumar prima facie provides an explanation why the deceased did not make any complaints about harassment being caused to her in the matrimonial home on account of dowry. She must be aware of the fact that since Sh. Ashok Kumar and his family members did not want her marriage to be performed with the respondent, she was likely to get rebuff from them if she had complained to them about any harassment on account of the demand of dowry. Moreover, the statement of Sh. Ashok Kumar prima facie appears to be contradictory. On the one hand he says that the first wife of the respondent had died because of burns in his house only about two years back. Therefore, it is not understood how at the time of inquest he could be sure that he did not suspect any foul play in the death of hissister. Infact, prima facie there is sufficient evidence to indicate demands of dowry and even receipt of about Rs. 5.000.00 by the first respondent from the father of the deceased against his demand of Rs. 15,000.00 There is also evidence to indicate that on account of the non fulfilllment of the demands of the respondent and his parents, they did not send the deceased with her father when he had come to take her only about 4-5 days before Holi and it was just within 15-16 days of Holi that Chhama Jain was found dead withburns. Two photographs have also been placed on record showing the posture in which the deceased was found lying. The head of the deceased in these photographs is seen resting on the bottom portion of the wooden stool.My feeling is that even these photographs prima facie cast strong suspicion about the commission of an offence under Section 304B Indian Penal Code by the first respondent.

(8) I am, therefore, of the view that the learned Asj has not correctly exercised discretion in the matter of grant of bail to the first respondent. It need not be said that such crimes against women are on the rise and if the Courts deal with such offences leniently in the initial stage when either the investigation is not even complete or the material witnesses have not been examined during trial such an attitude of Courts is likely to further encourage such crimes. The case of Ravi Kumar (supra) provided a completely different picture. There the in-laws were shown to have purchased property in favor of the deceased wife before her death. Some substantial cash amount was also shown deposited in the name of her newly born child. The complainant in that case was a step-mother who had separated Along with her husband from the tender children including the deceased and they were looked after by grand-parents. There were many other similar circumstances and the present case does not provide anyparallel.

(9) In conclusion, I am of the view that there was sufficient prima facie evidence on the basis of which it could be said that the first respondent was guilty of the commission of offence under Section 304B, 498A read with Section 34 Indian Penal Code and order of grant of bail lacks complete propriety and as such amenable to the jurisdiction of this Court under Section 397 read with Section 401 of the Code.

(10) The petition is, therefore, allowed. The bail granted to the first respondent is hereby cancelled. Concerned Court shall issue non-bail able warrants against the first respondent and put him in judicial custody.This order will not take away the right of the petitioner at some subsequentstage.