Zahida & Anr vs State
2016 Latest Caselaw 7239 Del

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*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                    +     BAIL APPLN. No.2483/2016
                                     Date of Decision: 05th December, 2016


     ZAHIDA & ANR.                                   ..... PETITIONERS
                           Through        Mr.Ajay Raj Singh, Adv. with
                                          Mr.Sabbir Ali, Adv.

                           versus

     STATE                                            ..... RESPONDENT

                           Through        Mr.Sudershan Joon, App for the
                                          State with SI Surendra Singh, PS
                                          Fatehpur Beri.

     CORAM:
     HON'BLE MR. JUSTICE P.S.TEJI

     P.S. TEJI, J (Oral)

1. The present application under Section 438 of the Code of

Criminal Procedure, has been filed by the applicants seeking

anticipatory bail in a case arising out of FIR No.418/2016

registered under Sections 498A/304B/34 of the Indian Penal Code

at Police Station Fatehpur Beri.

2. As per the FIR lodged by the complainant, it was stated by

her that she got her daughter Aarisha married with Saif Ali Khan.

It was stated by the complainant that after the marriage, her

daughter lived with her husband, mother-in-law Zahida and father-

in-law Sahir [email protected] Khan. It was further stated that at the

time of the marriage of her daughter, she had given cash of

Rs.51,000/-; household articles; jewellery about 12 tola and half

kilogram silver as dowry. It was further stated by the complainant

that after six to seven months of her daughter's marriage, her in-

laws demanded a car which they fulfilled by giving a used/second

hand santro car. It was next stated by the complainant that in 2014,

a motorcycle of Yamaha make was also given to the in-laws of her

daughter. It was also alleged in the FIR that whenever demand of

money was made by the in-laws of her daughter, the same were

fulfilled and despite that, after two months of marriage, her father-

in-law and mother-in-law started quarrelling with her and gave her

beatings. It was further stated that thereafter, the in-laws and her

daughter along with her husband got separated but they kept on

visiting Aarisha frequently and tortured her by quarrelling and

beatings. It was further submitted that thereafter the complainant

received information of her daughter lying unconscious and her

subsequent admission to a hospital. It was stated by the

complainant in the FIR that the cause of death of her daughter was

poisoning by the father-in-law and mother-in-law.

3. Learned counsel for the applicants has submitted that the

FIR was registered on a complaint of Smt. Mehjabeen, with regard

to domestic violence and dowry death of her daughter namely

Aarisha against Mr.Saif Ali Khan, her husband; Ms.Zahida,

mother-in-law and Mr.Shahid Khan, father-in-law.

4. Learned counsel for the applicants has submitted that the

marriage of the deceased Aasrisha and Saif Ali Khan was

solemnized on 1st June, 2012 and that there was no exchange of

dowry or any other articles. It is submitted that the applicants

accepted their wedlock and the couple resided along with them. It

is alleged that the complainant tried to misguide the deceased

Aarisha for getting separated from the matrimonial home.

5. It is further alleged by learned counsel for the petitioner that

on 1st January, 2014, the complainant along with the other family

members of the house, visited the house of the applicants and gave

them beating on petty issue upon which the petitioner/applicant

no.1 lodged an FIR. It is further submitted that on 29th May, 2014,

the deceased Aarisha lodged a complaint to the DCP of Hauz

Khas, Delhi, to the effect that the complainant with the other

maternal family members, were against her marriage and that they

were instigating her against her matrimonial family. In the said

complaint, it was also stated by the deceased that in case

something happens to her husband or to other members in his

family, her maternal family members would be responsible for the

same.

6. It is further submitted that due to continuous instigation, on

28th April, 2015, the applicants left the home and started residing

elsewhere and that the deceased Aarisha and the accused started

residing separately. It is next submitted that the applicants

telephonically came to know from the paternal aunt of the

deceased, that the deceased had consumed poison.

7. In support of his contention, learned counsel for the

applicants relies on the CCTV footage of the date of incident to

prove that the applicants were at their home when the incident took

place. It is further submitted that the applicants are living at a

distance of 600 meters from the house of the deceased and as per

the camera recordings, they were not present at the spot at the time

of consumption of poison by the deceased.

8. Learned APP for the State has vehemently opposed the

contentions raised by learned counsel for the applicant on the

ground that since there are specific allegations levelled against the

applicants which are serious in nature and that the applicants are

named in an offence which is against the society, the concession of

anticipatory bail ought not to be given to them. It is submitted that

the applicants had move an application for grant of anticipatory

bail before the Sessions Court which was dismissed by the learned

Additional Sessions Judge vide an order dated 22nd November,

2016.

9. Hearing upon learned counsel for the applicants at length

and going through the records including the FIR lodged, it is the

specific allegation of the complainant in her complaint lodged with

the police, that the applicants used to torture the deceased and beat

her frequently for dowry despite meeting their dowry demands. It

is also the specific allegation of the mother of the deceased that her

daughter was administered something which caused the death of

her daughter and that the same was given by her husband, mother-

in-law & father-in-law.

10. Contention of the applicants with regard to their non-

presence at the spot at the time of consumption of poison is

concerned, it is a matter of record that the case in hand is a case of

dowry death which does not warrant the presence of any of the

accused as cases of dowry death are based on circumstantial

evidence. The plea of non-presence is a matter of evidence which

could be established during the trial.

11. For granting anticipatory bail to the person against whom the

allegations are levelled, the factors that need to be taken into

consideration while dealing with anticipatory bail, are; (a) The

nature and gravity of the offence and the exact role of the accused

must be properly comprehended before arrest is made; (b) The

possibility of the applicant to flee from justice; (c) The possibility

of the accused's likelihood to repeat similar or other offences; (d)

while considering the prayer for grant of anticipatory bail, a

balance has to be struck between two factors, namely, no prejudice

should be caused to free, fair and full investigation, and there

should be prevention of harassment, humiliation and unjustified

detention of the accused; (e) The Court should consider reasonable

apprehension of tampering of the witness or apprehension of threat

to the complainant and unless there are peculiar and special facts

and circumstances in a given case, the Court would not be justified

in extending the benefit of anticipatory bail to such a person.

12. In view of the specific allegations made in the complaint as

well as the nature and gravity of the offence which involves the

death of a young girl that too within the span of seven years of her

marriage, this court is of the considered opinion that this case is not

a fit case for the grant of anticipatory bail to the applicants. The

same is rejected. Consequently, the present bail application is

dismissed.

13. Before parting with the above order, it is made clear that

anything observed in the present petition shall not have any

bearing on the merits of the case during trial.

With the aforesaid directions, the present bail application is

disposed of.

(P.S.TEJI) JUDGE DECEMBER 05, 2016 aa