Delhi High Court

Abhishek Kumar vs State on 13 December, 2022

Neutral Citation Number: 2022/DHC/005531

$~35
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Reserved on: November 04, 2022
Decided on: December 13, 2022
+ BAIL.APPLN.2042/2022
ABHISHEK KUMAR .... Petitioner
Through: Ms. I.H Syed, Senior
Advocate with Mr. Aldanish
Rein and Mr. Purshottam
Sharma, Advocates.
V
STATE .....Respondent
Through: Mr. Raghuvinder Varma,
APP for State with SI
Rakesh Kumar, P.S. Tigri.
Mr. Anuj Kumar Gaur,
Advocate for complainant
with complainant in person.
CORAM:
HON‟BLE MR. JUSTICE SUDHIR KUMAR JAIN
JUDGMENT

1. The present bail application is filed under section 439 Cr.P.C

(hereinafter referred to as "the Code") for grant of regular bail on

behalf of Abhishek Kumar (hereinafter referred to as "the

petitioner") in FIR bearing no.0166/2021 registered under sections

498A/306/34 of the Indian Penal Code, 1860 (hereinafter referred to

as the "IPC") at P.S Tigri, Delhi.

2. It is reflecting from the records that the petitioner got married

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with Alka on 17.01.2019 at Arya Samaj Mandir without the consent

of their parents. Alka (hereinafter referred to as "the deceased") has

expired on 03.05.2021. Thereafter, at the instance of Pappi Devi

(hereinafter referred to as "the complainant") who is the mother of

the deceased, the present FIR was got registered under sections

306/498A/34 IPC.

2.1 It is alleged in FIR bearing no. 0166/2021 that the deceased

got married with the petitioner against the consent and willingness of

her parents in the year 2019. The petitioner and his parents, namely,

Suman Devi and Ram Chandra and brother-in-law (dewar), namely,

Sumit used to torture the deceased on account of dowry. The

engagement ceremony of Akash who is the younger son of the

complainant was fixed on 03.05.2021. The complainant had sent her

two sons to bring the deceased at the parental home to attend the

engagement ceremony of Akash but the petitioner did not allow them

to meet with the deceased as such, sons of the complainant came

back at their parental home without meeting the deceased. The

petitioner and his mother Suman Devi (mother-in-law of the

deceased) came at the parental home of the deceased at about 11:00

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PM in the night on 03.05.2021 and left the deceased at the parental

home. The physical condition of the deceased at that time was bad

and on enquiry, she informed her parents that she was mercilessly

beaten by the petitioner and his mother Suman Devi. In the night, the

complainant and the deceased slept together in one room and in the

morning, the complainant had gone out of the room to do the routine

work. The complainant came back and called the deceased but she

did not respond. The complainant had gone to the terrace where the

deceased was not found. The complainant noticed that the lid of the

water tank was open and found that the body of the deceased was

lying there. The complainant called the other family members and

the deceased was removed to HAH Centenary Hospital (Majeedia

Hospital) where she had died.

2.2 A PCR call was received on 04.05.2021 at P.S. Tigri from

Majeedia Hospital regarding the death of the deceased who was

admitted in the hospital as "brought dead" after falling into the water

tank which was recorded vide DD no. 26A. DD no. 26A was

assigned to ASI Bacchu Ram who alongwith Ct. Kailash, went to

Majeedia Hospital. ASI Bacchu Ram collected MLC in respect of

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the deceased wherein, concerned doctor mentioned that the deceased

was "brought dead".

2.3 SDM, Saket examined the family members of the deceased

and recorded the statement of the complainant, Girish Chandra,

father of the deceased and Gagan, brother of the deceased.

Thereafter, prima facie it was noticed that the petitioner and his

family members subjected the deceased to cruelty for dowry demand

and were responsible for the suicide of the deceased. Accordingly,

the present FIR was got registered and further investigation was

conducted. During investigation, the exhibits were collected and

statements of the family members of the deceased as referred

hereinabove were recorded.

3. The petitioner filed an application bearing no. 942/2021 for

grant of anticipatory bail bearing no. 942/2021, which was dismissed

by the Court of Additional Sessions Judge, Saket Courts, Delhi vide

order dated 31.05.2021. The petitioner also filed another application

bearing no. 2068/2021 under section 438 of the Code for grant of

anticipatory bail before this Court which was ordered to be dismissed

as withdrawn on 20.07.2021. The petitioner was arrested in the

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present case on 16.09.2021. The petitioner is stated to be in judicial

custody.

3.1 The charge-sheet was filed under sections 498A/304B IPC

after conclusion of the investigation wherein the petitioner was

implicated and Suman Devi (mother of the petitioner), Ram Chandra

(father of the petitioner) and Sumit Kumar (brother of the petitioner)

were placed in column no. 12.

3.2 The petitioner filed an application for grant of bail under

section 439 of the Code which was ordered to be dismissed as

withdrawn by the Court of Special Judge/NDPS, South, Saket Courts

vide order dated 23.12.2021. The petitioner also filed another

application for grant of regular bail in the month of January, 2022

which was got dismissed by the Court of Additional Sessions Judge-

02, South, Sake Court vide order dated 20.01.2022.

4. In the present bail application, it is pleaded that the petitioner

is in judicial custody since 16.09.2021. The petitioner is innocent

and is falsely implicated in the present case for false allegation of

dowry death and harassment. As per the FIR, there is no role or

involvement of the petitioner in the present case. The petitioner is

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having clean antecedents.

4.1 The family members of the deceased were against the marriage

of the petitioner with the deceased and even after marriage, they did

not accept the petitioner as their son-in-law. The petitioner and the

deceased were living happily after the marriage at Delhi and

Ghaziabad. The deceased after one month of the marriage, was found

to be suffering from „Bipolar Affective Disorder Current Episode

Manic with Psychotic Symptoms‟ since 2013. The petitioner after

one month of the marriage i.e. on 21.02.2019, observed abnormal

changes in the behavior of the deceased as she was not able to control

her violent behavior. The deceased was got medically examined at

Lady Hardinge Medical College & Hospital and was found to be

suffering from depression episode since long time. The Doctor

prescribed medicines for a month for the treatment of the deceased.

The medicines for physiological disorder of the deceased were

stopped since 27.03.2019 due to her pregnancy but the condition of

the deceased was further deteriorated and her behavior had become

more abrupt and violent. The petitioner and the deceased were

blessed with a daughter on 26.10.2019 who was found to be suffering

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with congenital anomalies ruptured meningocele. The deceased was

also got admitted in the Lady Hardinge Medical College & Hospital

on 11.11.2019 by the petitioner for medical treatment as the deceased

was suffering from „Bipolar Affective Disorder Current Episode

Manic with Psychotic Symptoms‟. The petitioner also took the

deceased to Institute of Mental Health and Hospital, Agra, U.P. on

16.11.2019 for better treatment and second opinion regarding her

treatment. The deceased also remained admitted in Uttar Pradesh

University of Medical Science (UPUMS) during period w.e.f.

20.11.2019 to 05.12.2019. The newly born daughter of the petitioner

and the deceased has died on 13.12.2019 and due to this reason, the

medical condition of the deceased has further deteriorated and her

violent episodes became more frequent and aggressive. The

petitioner again took the deceased for treatment to the Institute of

Human Behaviour & Allied Science (IHBAS), Dilshad Garden where

she was treated till 20.04.2021. The petitioner has taken proper care

of the deceased and performed his duty as husband. The deceased

also attacked the petitioner on 02.05.2021 at about 3:30 AM while he

was sleeping by a knife and inflict stabbed injuries in the neck. The

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petitioner could manage to save himself and the police was also

called. The deceased also tried to hang herself by using a dupatta.

The medical condition of the deceased has further deteriorated on

03.05.2021 and due to this reason, the petitioner took the deceased to

her parental home for better care and treatment. The petitioner on

04.05.2021, in the morning at about 9:00 AM, made a telephone call

to his brother-in-law to enquire about the condition of the deceased

but he was informed by brother-in-law regarding the death of the

deceased. The petitioner after receiving the information regarding

the death of the deceased, got shocked. Thereafter the present FIR

was got registered.

4.2 The petitioner sought the grant of regular bail on the grounds

that he is innocent and has been falsely implicated by the

prosecution. The deceased was suffering from depression for a long

time. The petitioner was taken in police custody for investigation.

The charge-sheet has already been filed after completion of

investigation. The family members of the petitioner were placed in

column no. 12 due to insufficient evidence against them. The

medical documents submitted alongwith the charge-sheet were

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verified during the investigation. The petitioner prayed that he be

released on bail on other grounds as mentioned in the application.

5. The respondent/State in the Status Report besides submitting

factual position as mentioned hereinabove, also submitted that during

investigation, the parents and brothers of the deceased were further

examined and their statements were recorded under section 161 of

the Code wherein they stated that the call recordings and notebook

written by the deceased reflects that she was subjected to cruelty by

her husband and his family members. The offence punishable under

section 304B IPC was added during the investigation. It was also

found after verification of medical documents that the deceased was

suffering from the disease „Bipolar Affective Disorder‟. The post-

mortem on the dead body of the deceased was conducted. Post-

Mortem Report bearing PM no. 672/2021 dated 05.05.2021 was

obtained from AIIMS, Delhi wherein, the cause of death was opined

as "Asphyxia due to ante-mortem drowning" and the ante-mortem

injuries as detailed in the Status Report were also found on the body

of the deceased.

5.1 It was also stated on the basis of statement of the parents of the

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deceased recorded under section 161 of the Code that the deceased

was subjected to mental and physical cruelty and harassment for

demand of Rs.6 lacs by the petitioner and his mother. The deceased

also made a complaint to CAW Cell in July, 2020 regarding the

cruelty caused to her by the petitioner and his family members for

Rs.6 lacs but again the petitioner and the deceased lived together.

The petitioner continued to demand Rs.6 lacs from the deceased and

for this reason, he caused mental and physical cruelty to the deceased

and the deceased was not allowed to meet or talk to her parents or

family members. The physical condition of the deceased was very

bad when she was left at her matrimonial home on 03.05.2021 as she

was beaten by the petitioner and her mother-in-law for Rs.6 lacs. It

is stated that the bail application deserves to be dismissed.

6. The learned Senior Counsel for the petitioner has advanced

oral arguments as well as submitted written arguments. The learned

Senior Counsel for the petitioner argued that the marriage of the

petitioner with the deceased was scheduled to be held on 22.06.2018

but due to some dispute, the said ceremony was got cancelled. The

petitioner and the deceased got married on 17.01.2019 at Arya Samaj

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Mandir without the consent of their parents. The petitioner soon

after the marriage, observed abnormal changes in the behavior of the

deceased as she was not able to control her violent behavior. The

deceased was immediately taken to Lady Hardinge Medical College

& Hospital on 22.02.2019 where she was diagnosed with „Bipolar

Affective Disorder‟. A team of Doctors on 11.11.2019 also opined

that the deceased was "over talkative, delusion, PMA and

aggressive behavior and recently behaved violently towards

another person besides other symptoms."

6.1 The learned Senior Counsel for the petitioner also referred the

Modi Medical Jurisprudence and Toxicology on Bipolar Disorder

where it is stated that "suicide or suicidal attempt is often the first

and the last symptom of depressive illness. Suicide is well planned

and is of great danger to the patient". The deceased also remained

hospitalized for a period w.e.f. 11.11.2019 to 14.11.2019 but without

any improvement. The learned Senior Counsel for the petitioner

further argued that the deceased was also admitted in Uttar Pradesh

University of Medical Sciences during period w.e.f. 20.11.2019 to

05.12.2019 for medical treatment of bipolar disorder.

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6.2 The deceased on 16.10.2020, was taken to IBHAS where she

was prescribed „Lithium 300 Mg‟ and the said medicine as per

Wikipedia is used as psychiatric medication, primarily for bipolar

disorder and for major depressive disorder. It also reduces the risk of

suicide. The deceased subsequently was prescribed for increased

dose of „Lithium 900 Mg‟. The deceased was also prescribed

Lithium by Red Cross Hospital on 27.04.2021. The learned Senior

Counsel for the petitioner also referred the injuries stated to be found

on the body of the deceased during post-mortem by referring Modi

Medical Jurisprudence. The learned Senior Counsel for the

petitioner during the course of arguments also cited judgment

Subhan Ali and another V State passed by the Co-ordinate Bench

of this Court on 27.11.2006. It was argued that the

accused/petitioner be granted regular bail.

7. The counsel for the complainant also submitted the written

arguments wherein it is stated that the marriage between the

petitioner and the deceased could not be solemnized in the year 2018

due to the demand of dowry, however, the petitioner started

contacting the deceased and assured that no dowry would be taken.

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The petitioner and the deceased solemnized their marriage on

17.01.2019. The deceased was subjected to cruelty for dowry

demands. The daughter of the petitioner and deceased also died on

13.12.2019 in mysterious circumstances. The petitioner also

worked/employed as CSSD Technician at IHBAS Hospital. The

deceased was subjected to cruelty for dowry demand of Rs.6 lacs.

The petitioner did not provide appropriate medical care to the

deceased. The deceased was also used to be beaten by the petitioner

and his family members and was not provided basic amenities. The

deceased also lodged a complaint at P.S. Tigri on 30.01.2020

regarding the torture caused to her due to dowry demand and the

petitioner had agreed to the deceased back to the matrimonial home.

The petitioner and his family members insulted the family of the

deceased on 11.04.2021. The deceased was not allowed to join the

engagement ceremony of her brother which was scheduled for

03.05.2021. The deceased alongwith the petitioner and her mother-

in-law, namely, Suman Devi came at her parental house and at that

time, she was having multiple injuries and on enquiry, she informed

that she was beaten by the petitioner and her mother-in-law, namely,

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Suman Devi. The petitioner and his family members used to demand

continuously Rs.6 lacs from the deceased and due to which, she had

died. The counsel for the complainant also mentioned various other

facts in the written arguments.

8. The Additional Public Prosecutor for the State/respondent

advanced arguments mostly on the basis of facts as mentioned in the

Status Report.

9. It is reflecting that initially, the marriage of the petitioner and

the deceased was fixed by their parents and engagement ceremony

was scheduled to be held on 22.06.2018 which was cancelled due to

some dispute. The petitioner and the deceased got married on

17.01.2019 at Arya Samaj Mandir without the consent of their

parents. A daughter was born out of their marriage on 26.10.2019

who expired due to medical condition. The deceased soon after the

marriage, was diagnosed with „Bipolar Affective Disorder‟ as

appearing from the medical documents placed on record. The

deceased was also treated in various hospitals. The Department of

Psychiatry, Lady Hardinge Medical College & Hospital and associate

hospital also diagnosed the deceased with „Bipolar Affective

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Disorder‟. The deceased was also given „Lithium 300 Mg‟ which

was also increased to 900 Mg subsequently. It was also noticed from

the assessment of the deceased made on 11.11.2019 that she was

having symptoms of "over talkativeness, delusion, PMA and

aggressive behavior" besides other symptoms.

9.1 The complainant in FIR did not refer the demand of Rs.6 lacs

alleged to have been made by the petitioner and their family

members from the deceased specifically and only made a general

allegation that the deceased was tortured by the petitioner and his

family members for dowry demands. The statements of the

complainant and her family members were recorded by the SDM,

Saket wherein they did not make any specific allegation regarding

the demand of Rs.6 lacs by the petitioner and his family members

from the deceased and due to this reason, she was subjected to mental

and physical cruelty. It is reflecting from Status Report submitted by

the respondent/State that during the investigation, the statements of

the parents of the deceased were recorded under section 161 of the

Code wherein they have referred dowry demand of Rs.6 lacs alleged

to have been made by the petitioner and his family members and due

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to this reason, the deceased was subjected to mental and physical

cruelty and harassment.

9.2 At this stage, it is appearing that the general allegation

regarding the dowry demands were made by the parents of the

deceased including the complainant in the complaint culminated into

registration of FIR and in the statements made before the SDM,

Saket. The alleged dowry demand of Rs.6 lacs was firstly made in

the statement recorded under section 161 of the Code. The deceased

was suffering from „Bipolar Affective Disorder‟ and was given

medicines which were also enhanced subsequently. It is correct that

during the post-mortem, certain injuries were found on the dead body

of the deceased but it does not reflect that she was subjected to

physical cruelty for dowry demands. The petitioner is in judicial

custody since 16.09.2021. The charge-sheet is already filed.

9.3 The Supreme Court in Kunhiabdulla & another V State of

Kerala, (2004) 4 SCC 13 observed as under:-

11. A conjoint reading of Section 113-B of the Evidence Act and Section 304-B IPC shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of "death occurring otherwise than in

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normal circumstances". The expression "soon before" is very relevant where Section 113-B of the Evidence Act and Section 304-B IPC are pressed into service. The prosecution is obliged to show that soon before the occurrence there was cruelty or harassment and only in that case the presumption operates. Evidence in that regard has to be led by the prosecution. "Soon before" is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period of soon before the occurrence. It would be hazardous to indicate any fixed period, and that brings in the importance of a proximity test both for the proof of an offence of dowry death as well as for raising a presumption under Section 113-B of the Evidence Act. The expression "soon before her death" used in the substantive Section 304-B IPC and Section 113-B of the Evidence Act is present with the idea of proximity test. No definite period has been indicated and the expression "soon before" is not defined. A reference to the expression "soon before" used in Section 114 Illustration (a) of the Evidence Act is relevant. It lays down that a court may presume that a man who is in the possession of goods "soon after the theft", is either the thief, or has received the goods knowing them to be stolen, unless he can account for its possession. The determination of the period which can come within the term "soon before" is left to be determined by the courts, depending upon facts and circumstances of each case. Suffice, however, to indicate that the expression "soon before" would normally imply that the interval should not be much between the cruelty or harassment concerned and the death in question. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the death concerned. If alleged incident of cruelty is remote in time and has become stale enough not to disturb the mental equilibrium of the woman concerned, it would be of no consequence.

10. After considering all facts, the petitioner is admitted to bail on

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furnishing a personal bond in the sum of Rs. 25,000/- with one local

surety of the like amount to the satisfaction of the concerned trial

court with the following conditions:-

i. That the petitioner shall provide his mobile phone number to the concerned Investigating Officer (IO) immediately after release which shall be kept in working condition at all times; ii. That the petitioner will mark his presence before the concerned Investigating Officer on 2nd and 4th Friday of each English calendar month pre conclusion of trial;

iii. That the petitioner shall not leave the country without prior permission of the Court; iv. That the petitioner shall not indulge contact or communicate with the family members of the deceased;