Jammu & Kashmir High Court

Rajeev Paul vs Ut Of J&K on 1 February, 2021

             HIGH COURT OF JAMMU AND KASHMIR
                        AT JAMMU
                       (Through video conference)


                                               Bail App No. 243/2020
                                               CrlM Nos. 1539/2020,
                                               1540/2020 & 1541/2020


 Rajeev Paul                                                   ....Petitioner(s)


                   Through :- Mr. Ajay Gupta, Advocate



                 V/s


 UT of J&K                                                   ....Respondent(s)


                   Through :- Mr. Ayjaz Lone, Dy. AG



Coram: HON'BLE MR. JUSTICE DHIRAJ SINGH THAKUR, JUDGE



                                   ORDER

01.02.2021

01. This is an application under Section 438 of the Cr. PC for grant of

anticipatory bail in FIR No. 201/2020 registered with Police Station Bari,

Brahmana under Sections 306, 323, 109, 498-A, 498-B of Indian Penal Code.

02. The petitioner and the complainant's daughter-Shilpi Paul got married

on 01.05.2014. Shilpi Paul committed suicide on 05.09.2020, while she was

residing in the family quarter along with her husband, the petitioner herein, at

Bari Brahmana. The body of the complainant's daughter was found hanging

from the ceiling in the said quarter, allotted to the petitioner, who is working in

Army.

03. An FIR was lodged by the father of the deceased, wherein it was

stated that the petitioner had been harassing his daughter after approximately

three to four months of marriage. She was subjected to misbehaviour and

physical beatings at the hands of the petitioner, which resulted in the deceased

remaining mentally disturbed. It is stated that in the year 2015, the petitioner

took Shilpi Paul to Rajasthan, where he was posted, thereafter continued the

misbehaviour and harassment, demanding dowry including jewellery items on

regular basis.

04. It is alleged that in the year 2016, the petitioner took Shilpi Paul out

with an intention to kill her. The modus operandi adopted was that he took her

to Digha (sea beach) and left her to drown her, knowing fully well that she did

not know how to swim. It is further alleged in the FIR that when the daughter

of the complainant started drowning, the petitioner was busy with his own

enjoyment (swimming). It was because of her hue and cry people present

nearby saved her from drowning. In another incident, it is alleged that the

petitioner tried to kill the complainant's daughter with a "Gamcha" (towel) but

somehow she managed to save herself by locking the door. All this was done,

as alleged on account of the dowry demands.

05. Based upon the aforementioned action and maltreatment, it is alleged

that an FIR was lodged against the petitioner and his parents, while the

complainant's daughter came to stay with the complainant for a period of four

months approximately. It is stated that subsequently on account of the request

of the petitioner and also of the relatives, the complainant's daughter was sent

back to her in-laws, where after in the year 2017 she gave birth to a son.

06. It is next alleged that in the year 2018, the petitioner got posted at

Bari Brahmana, where he continued hitting the complainant's daughter. It is

also alleged that the daughter of the complainant expressed her desire to meet

her parents, which was refused by the petitioner leading to cancellation of the

tickets booked by the complainant and his family. All along, it is alleged that

the dowry demands were made accompanied with physical abuse and beating.

07. It is also alleged that the petitioner never permitted the complainant's

daughter to talk to her parents, who would then contact in his absence. It is

further alleged that whenever the complainant's daughter requested for a visit

to her parental house, she was asked to go alone leaving her son behind. It is

further alleged that the petitioner and his family members would often threaten

the complainant's daughter of elimination.

08. An application for grant of anticipatory bail was preferred by the

petitioner in the Court of learned Principal Sessions Judge, Samba, which was

dismissed vide judgment and order dated 08.10.2020.

09. Learned counsel for the petitioner urged that the view expressed by

the learned Principal Sessions Judge, Samba while rejecting the prayer for grant

of anticipatory bail was untenable in law. It was stated that the deceased was

the only child in her family and thus was pampered and highly sensitive in

nature. It was stated that the petitioner and the deceased were residing happily

along with three years old child, ever since his posting at Bari-Brahmana for the

last three years.

10. It is further stated that on the unfortunate day the petitioner was in

office attending to his duties when he received a call from the deceased wife,

complaining that the child was crying, which was irritating her and that she

required him to come back to take care of him. It is stated that after attending

the duties, the petitioner came back at about 6.00 p.m. and accordingly took the

child for a round in the park and while he was in the park with a child the

deceased made three Whats App voice calls to the petitioner at about 6.40 p.m.,

which was seen by the petitioner at about 7.15 p.m. This was the last phone call

made by the deceased to the petitioner, wherein she stated about the difficulty

faced by her due to the child's crying. Upon returning to the house, the

petitioner stated that he was shocked to see the condition of the deceased and

cried for help. Some of the telephone conversations translated from Bengali to

Hindi have also been produced in the petition with a view to show the

innocence of the petitioner. Not only this, the petitioner claims that there is a

suicide note left by the deceased in which the following is recorded:-

"Mere marne ke liye main doshi hu, Rajeev Paul nahi hai.

Mai Maru ghi."

11. It is stated that the FIR registered against the petitioner is nothing but

an emotional outburst by the father of the deceased. Reliance is placed upon

various judgments to show that the ingredients under Section 306 of the IPC are

not made out.

12. Objections have been filed by the Deputy Advocate General, wherein

a stand is taken that based upon the material collected during the course of

investigation, prima facie a case under Section 306/323/304-B/498-A/498-B of

the IPC has been established against Hav. Rajeev Paul.

13. It is further stated that Section 306 of the IPC is a heinous offence,

which is punishable with imprisonment for a term which may extend to ten

years and fine and that there is enough material to disclose the direct complicity

of the accused, who had abetted the suicide of his deceased wife, attracting the

provision of Section 113-A of the Evidence Act, as the death had occurred

within six years of her marriage. It was stated that the Court below had rightly

considered and rejected the plea of the petitioner for grant of anticipatory bail.

14. Section 306 of the IPC envisaged that if any person commits suicide,

whoever abets the commission of such suicide, shall be liable to be punished.

The requisite ingredients of abetment are reflected in Section 107 of the IPC,

which reads as under:-

" Section 107:-

A person abets the doing of a thing, who: [1] Instigates any person to do that thing; or [2] Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or [3] Intentionally aids, by any act or illegal omission, the doing of that thing."

15. Section 113-A of the Evidence Act raises a presumption as to

abetment of suicide by a married women and reads thus:-

"When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband.

Explanation. -- For the purposes of this section, "cruelty" shall have the same meaning as in Section 498-A of the Indian Penal Code (45 of 1860)."

16. On a perusal of Section 113-A of the Evidence Act it thus becomes

clear that the presumption is not mandatory but only presumptive because of

the reason of the phrase "may presume" and "having regard to all other

circumstances of the case." There is thus enough scope for the Court,

considering the facts and circumstances of the given case to come to a

conclusion other than drawing a presumption in terms of Section 113-A of the

Evidence Act, based only on the fact that the husband or relatives of her

husband abetted the suicide, as the same had occurred within seven years from

the date of her marriage.

17. In Brij Lal Vs Prem Chand and another, reported in AIR 1989 SC

1661, the Apex Court held thus:-

"Where there was overwhelming evidence that the accused had made the life of his wife intolerable by constantly demanding money and made it clear to her that if she wanted to die, she may do so on very same day and give him relief forthwith, thereby spurring her and goading her to commit suicide, the case would squarely fall under the first category of abetment under Section 107."

18. In Sanju @ Sanjay Singh Sengar vs State Of M.P reported in 2002

5 SCC 371, the Court had held that the words uttered in a quarrel or in the spur

of the moment or in anger cannot be treated as constituting mens rea. In that

case the appellant had said to the deceased "to go and die". As a result of such

utterance, the deceased went and committed suicide. The Supreme Court

observed that no offence under Section 306 IPC read with Section 107 IPC was

made out because there was no element of mens rea.

19. In Randhir Singh and another Vs State of Punjab, reported in

2004(13) SCC 129, the Apex Court in paragraph 12 held thus:

"12 Abetment involves a mental process of instigating a person or intentionally aiding that person in doing of a thing. In cases of conspiracy also it would involve that mental process of entering into conspiracy for the doing of that thing. More active role which can be described as instigating or aiding the doing of a thing it required before a parson can be said to be abetting the commission of offence under Section 306 of IPC."

20. In Bhagwan Das vs Kartar Singh & Ors, reported in 2007 11 SCC

205, the Apex Court held that that mere harassment of wife by husband due to

difference per se did not attract Section 306 read with Section 107 of the IPC, if

the wife commits suicide. What was held in paragraph 16 is reproduced

hereunder:-

"16. However, in our opinion mere harassment of wife by husband due to differences per se does not attract Section 306 read with Section 107 IPC, if the wife commits suicide. Hence, we agree with the view taken by the High Court. We, however, make it clear that if the suicide was due to demand of

dowry soon before her death then Section 304B IPC may be attracted, whether it is a case of homicide or suicide.

21. In Mahendra Singh Vs State of M. P., reported in 1995 Supp.(3)

SCC 731, the appellant was charged for an offence under Section 306 of the

IPC, based upon the dying declaration of the deceased, which read as under:-

"My mother-in-law and husband and sister-in- law (husband's elder brother's wife) harassed me. They beat me and abused me. My husband Mahendra wants to marry a second time. He has illicit connections with my sister-in-law. Because of these reasons and being harassed I want to die by burning."

The Apex Court on the aforementioned allegations came to a definite

conclusion, that neither of the ingredients of abetment were attracted on the

statement of the deceased.

22. In the present case, while learned counsel for the respondent has

referred to material indicating the allegations of demand of dowry and physical

abuse with reference to the statement of the father of the deceased, no mention

at all has been made of the so-called dying declaration on which the petitioner

has placed overwhelming reliance, which according to learned counsel for the

petitioner totally absolves the petitioner of any abetment to suicide. The

respondent has also not questioned the veracity of the document termed as a

dying declaration. Assuming that there was a matrimonial discord between the

deceased and the petitioner and the demand of dowry in the past, yet the