HC rejects anticipatory bail plea of lady, in dowry death case under section 304B IPC

FULL TEXT OF JUDGMENT On Dated: 23.03.2021

30/03/2021

HIGH COURT OF JAMMU AND KASHMIR
AT JAMMU
Pronounced On: 23.03.2021.

Bail App No. 68/2021
CrLM No. 440/2021

Shilpa ....Applicant/Petitioner (s)

Through: -
Mr. P. N. Raina, Sr. Advocate with
Mr. J. A. Hamal, Advocate and
Ms. Deepika Rajawat, Advocate.

VS

UT of J&K through SHO P/S Samba …..Respondent(s)
Through: -
Mr. A. M. Malik, Dy.AG
Mr. Justice Javed Iqbal Wani
JUDGMENT
1. Through the medium of instant petition, petitioner seeks bail in anticipation of her arrest in FIR No. 0005/2021 dated 02.01.2021 for commission of offences punishable under Section 304-B IPC registered at Police Station, Samba.
2. The facts giving rise for filing of the instant petition as stated in the petition are that on false and frivolous grounds an FIR came to be registered against the petitioner in Police Station, Samba. The petitioner states to married to one Suresh Kumar in the year 2005 and remained occupied with her ailing child and hardly visited her parents and brother namely Abhishek Badyal who had been married to deceased Pallavi Gupta on 18.12.2018.
3. It is being stated that petitioner shared pleasant relationship with the deceased (her babi) having nothing ill about her in her heart or anything to seek or settle with her.
4. It is being stated that despite being innocent, petitioner was falsely implicated in the FIR by the father of the deceased who had been against his daughter’s marriage with the petitioner’s brother and is using the daughter’s death as a revenge against the petitioner and her family.
5. It is being further stated that except the petitioner all other family members including father, mother, two brothers and a sister-in-law have been arrested in the FIR on the basis of false and fabricated complaint and statement given by the father of the deceased.
6. It is being next stated that on account of the aforesaid false and fabricated complaint and FIR, respondents are harassing the applicant/petitioner and all set to arrest her.
7. It is being further stated that she is only support around her ailing son namely Shiva who in the event of her arrest will suffer an irreparable loss, besides the petitioner would also suffer an irrepa-rable loss as she enjoys very good reputation in the society/in-laws.
8. It is being stated that prior to the filing of the instant application petitioner filed an anticipatory bail before this court being Bail App No. 22/2021 which, however, came to be dismissed on 03.02.2021 with liberty to the petitioner to approach the court of first instant and whereupon the petitioner filed application for anticipatory bail before Principal Sessions Judge, Samba, which too came to be dismissed on 26.02.2021. Petitioner while claiming to be a respectable person having deep roots in the society with no chance to jump over the bail and the conditions put by this court seeks bail in anticipation thereof.
9. Per contra, respondent in the objections filed in opposition to the instant bail application seek dismissal of the same on the premise that upon receiving of the application from the father of the deceased and undertaking inquest proceedings filed under DDR No. 08 dated 01.01.2021 commission of offences under Section 304-B IPC surfaced and resulted into registration of FIR in question.
10. It is being stated in the objections that though during the investigation, Special Investigation Team, recorded the statement of mother of the deceased under Section 161 Cr.PC and of her brother under Section 164 Cr.PC whereupon accused persons came to be arrested except the petitioner. A Special Investigation Team is stated to have been re-constituted under the supervision of T. R. Bhardwaj, Dy.SP Headquarters Samba and during the course of investigation Viscera of the deceased is stated to have been sent to the FSL Jammu and vital parts to pathological Lab Jammu for expert opinion.
11. It is being further stated that during the investigation two diaries and one notebook of the deceased came to be seized and sent to FSL Jammu, for comparison of handwriting of the deceased. One mobile phone of deceased is also stated to have been seized and sent to FSL Srinagar, for examination and reports regarding Whatsapp Chat/messages which reports are stated to be awaited. Besides statements of brother and father of the deceased are stated to have been recorded under Section 164 Cr. PC. The deceased is stated to have been working as a teacher (temporary) in Bhargawa College Supwal, Samba and had been pursuing her BBM from Noorpur, Himachal Pardesh.
12. It is being next stated that as per the statements made by the brother and father of the deceased, the deceased got missing on 16.12.2018 where after the accused persons are stated to have got marriage of the deceased arranged/solemnized with Abhishek. The accused persons are stated to have been demanding dowry from the beginning of the marriage from the deceased even after the marriage issue of the deceased was settled with the involvement of prominent persons of Samba and an advocate. The accused persons are stated to have been torturing the deceased disallowing her to meet her parents and also restraining her from using of mobile phone.
13. It is being next stated that on the basis of the statements made by brother and father of the deceased that the complainant had been providing money, clothes and other valuables to the deceased for the accused persons. On 31.12.2002 accused persons are stated to have a fight with the deceased and beaten her resulting into the death of the deceased by hanging from the roof at her residential home. The accused persons are stated to have not informed either brother or the parents of the deceased about the death of the deceased. The role of the petitioner herein is being separately detailed out in the commission of offence at para 3 in the objections which in extenso is reproduced hereunder: -
“3. That as far as the role of Shilpa @ Shama W/o Suresh Kumar R/o Hiranagar Kathua is concerned the accused is involved in this case as her name figured in FIR as well as her role has been described by the deceased in her diary page No. 77 collected during investigation. Moreover Jatin Gupta and Monal Gupta brothers of the deceased have specifically mentioned the name of accused Shilpa (petitioner) in their statements recorded U/s 164 CrPC stating that she had subjected the deceased to cruelty and harassment on account of demand of dowry. Ramesh Chander Gupta father of the deceased has also stated in his statement U/s 164 CrPC that the sister in law of the deceased was subjecting her with cruelty and harassment on account of demand of Dowry.”
14. It is being further stated that the petitioner is absconding and evading her arrest along with her husband after having taken part in the commission of offence. The investigation in the case is stated to be going on and the petitioner is stated to be involved in the commission of said heinous offence, as such, admitting her to bail in anticipation is resisted and opposed by the respondents.
15. Heard and considered the rival submissions made by learne counsel appearing on either side.
16. Learned counsel for the petitioner while making his submission insisted for grant of bail in anticipation of arrest to the petitioner, whereas learned counsel for the respondent vehemently opposed the same. Learned counsel for the petitioner relied upon the judgement of the Supreme Court passed in case titled as “Sushila Aggarwal and Others Vs. State (NCT of Delhi) and Anr.,” reported in 2020 (2) SCC (Cri) 721.
17. The petitioner is alleged to be involved in the commission of offence under Section304-B IPC which provides and reads as under: -
Section 304-B, relates to dowry death and provides that where the death of women is caused by any burns or bodily injury or otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for or in connection with any demand of dowry, such death shall be called “dowry death”
This section 304-B has a proximate nexus with section 113-B of Evidence Act 1872, which reads as follows: -
Presumption as to dowry death- “When the question is whether a person has committed the dowry death of a woman and it is shown that soon before her death such woman had been subjected by such person to cruelty or harassment for, or in connection with, any demand for dowry, the court shall presume that such person has caused the dowry death”.
Explanation:- For the purposes of this section, “dowry death” shall have the same meaning as in section 304-B of the Indian Panel Code.
18. Before adverting to the question as to whether the petitioner deserves to be enlarged on bail in anticipation of her arrest in the FIR in question or not, it becomes imperative to refer to the law laid down by the Apex court on the subject of bail/anticipatory bail and issues connected thereto in the first place. In the latest judgement of Apex Court passed in case titled as “Naresh Kumar Mangla Vs. Anita Agarwal” reported in 2020 SCC online SC 1031, wherein it is noticed as under:-
“92.1…. The application seeking anticipatory bail should contain bare essential facts relating to the offence, and why the applicant reasonably apprehends arrest, as well as his side of the story. These are essential for the court which should consider his application, to evaluate the threat or apprehension, its gravity or seriousness and the appropriateness of any condition that may have to be imposed.
92.3….While considering an application (for grant of anticipatory bail) the court has to consider the nature of the offence, the role of the person, the likelihood of his influencing the course of investigation, or tampering with evidence (including intimidating witnesses), likelihood of fleeing justice (such as leaving the country), etc.
92.4…. Courts ought to be generally guided by considerations such as the nature and gravity of the offences, the role attributed to the applicant, and the facts of the case, while considering whether to grant anticipatory bail, or refuse it.
In “Anil Kumar Yadav Vs. State (NCT of Delhi) and Anr., reported in 2018 (12) SCC 129”, at Para 15, it has been noticed as under:-
15. “As held in Puran case [2001(6) SCC 338], while considering the question of grant of bail, court should avoid consideration of details of evidence as it is not a relevant consideration. While it is necessary to consider the prima facie case, an exhaustive exploration of the merits of the case should be avoided. We, therefore, consciously refrain from considering the merits of the materials/ evidence collected by the prosecution.”
19. Having regard to the provisions of Section 304-B supra read with Section 113-B of the Evidence Act and looking at the case setup by the petitioner for grant of bail in anticipation of her arrest inasmuch as the objections/reply filed by the respondents, admittedly the person of the deceased died within seven years of her marriage on 01.01.2021 otherwise than under normal circumstances without there being any kind of explanation thereto from the petitioner in her petition.
20. Perusal of the record and Para 3 supra of the objections in particular reveals, that prima-facie there is material in connection with the commission of offence against the petitioner which cannot be either overlooked or else ignored by this court while dealing with the instant application by this Court. A general contention of the petitioner that she did not commit any crime and that she is innocent living separately with her husband after her marriage in the year 2015 cannot per-se discredit or discard the investigation in this regard conducted so far by the respondents.
21. This court at this stage can neither go into the evidence in such a depth which would amount to ascertaining the probability of the conviction of the accused petitioner nor can it be said at this stage that the case foisted against the petitioner is totally false, in that, detailed examination of the evidence and elaborate documentation of the merits of the case cannot be undertaken at this stage by this court.
22. The judgement referred to by learned counsel for the petitioner passed in “Sushila Aggarwal” supra case in essence fundamentally reiterate the principles and propositions of law on the subject of anticipatory bails which have been laid down in the “Naresh Kumar Mangla” supra case and do not lend any support to the petitioner in the facts and circumstances of the case.
23. The role of the petitioner in the commission of alleged offence is required to be left open to be investigated into by the investigating agency which is required to be given a free hand to investigate the case from all its angles. The conduct of the petitioner and in evading of her arrest inasmuch as being wife of a police officer cannot be overlooked by this court..
24. The nature of accusation and gravity of the offence also cannot be overlooked in the matter. The offence in which the petitioner is allegedly involved is punishable with imprisonment for not less than seven years which may extend to imprisonment for life. There has been a loss of life of a young budding woman in early years of her marriage otherwise than under normal circumstances by hanging. Enlargement of the petitioner on bail in anticipation of her arrest at this stage may hamper the investigation.
25. Viewed in the context what has been observed, considered and discussed above, the instant application merits dismissal and is accordingly dismissed along with all connected IA(s).
26. It is made clear that nothing hereinabove shall be construed to be expression of any opinion about the guilt or innocence of the petitioner in the FIR in question.
Javed Iqbal Wani
Judge
Jammu
23/03/2021
“Ishaq”

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