The applicants - original accused have preferred this application under Section 439 of the Code of Criminal Procedure for enlarging them on regular bail in connection with CR No. I - 163 of 2011 registered with Mundra Police Station, for the offences under Sections 306, 498-A, 201 and 114 of Indian Penal Code.
Learned Senior Advocate Mr. Sudhir Nanavati, appearing with Mrs. V.D. Nanavati, for the applicants has contended that the applicants are innocent and they have not committed any offence, as alleged against them. He has contended that the alleged incident took place on 25.9.2011 and though the brother of deceased Hinaba was present at the time of incident, the complaint was lodged on 28.9.2011. Since there is delay in filing the complaint it can be presumed that the allegations made by the complainant is an afterthought and had been made only with a view to escape from the social pressure of relatives. He has contended that the complainant and his son have also attended the Besana, but, they did not inform any one regarding unnatural death of deceased and went to Surendranagar and thereafter only on 28.9.2011 the complaint is lodged alleging that Hinaba had committed suicide by consuming poisonous medicine as the applicants and their son Jayendrasinh were harassing Hinaba by demanding dowry and motorcycle. He has contended that the deceased Hinaba and son of the applicants were loving each other and at no point of time Hinaba has made any complaint to anyone regarding the demand of dowry and motorcycle. He has contended that cremation of dead body of Hinaba was carried out with the consent of her nearest relatives. He has contended that cause of death was natural and the applicants and their son Jayendrasinh had never subjected Hinaba to cruelty and, therefore, the applicants may be enlarged on bail as there is no legal evidence of whatsoever nature against the present applicants, except the bare statement of the complainant and that too after three days of the incident.
Mr.
Nanavati has further contended that the allegations of committing offence under Section 306 I.P. Code is without any base or legal evidence. He has contended that it was an incident of natural death as the deceased died because of heart-attack and when the dead body was cremated in presence of relatives of deceased and when the complainant and his son were very much present in the Besana ceremony on the next day and when the FIR is lodged after three days, which is an afterthought, it cannot be said that the applicants are guilty of abetment. He has contended that there is no existence of ingredients of abetment and even no inference can be drawn against the applicants that they have aided or instigated or abetted the deceased to commit suicide and, therefore, the allegation as to abetment in committing suicide is baseless and without any evidence.
Mr.
Nanavati has further contended that deceased Hinaba had died because of heart-attack and as the death was natural, the dead body was cremated in presence of Chandubha Jadeja and Sultansinh Jadeja, brother in law of the complainant and Dharmendrasinh, the son of the complainant, and at that time no objection of any nature was raised or any police complaint has been made by anybody. Therefore, it cannot be said that the death was unnatural or accidental and there is no question of causing disappearance of any evidence and hence Section 201 I.P. Code would not be attracted.
He has further contended that there is no recovery or discovery of any material connecting the applicants in the alleged offences except the bare statement of the complainant and some of the relatives of the complainant. He has contended that the Investigating Agency has also prepared the panchnama of room of the deceased Hinaba and no evidence of whatsoever nature incriminating the applicants has been recovered or discovered. He has contended that looking to the facts and circumstances of the case, prima-facie, case is not established against the applicants. He has contended that both the applicants are old aged persons and they are permanent residents of village and possessing movable and immovable properties and they are not likely to abscond. He also submitted that since the charge-sheet is already filed there is no question of the applicants tampering with the evidence. He has also contended that to establish the allegations of Sections 498-A and 306 I.P. Code there must be direct evidence to show that due to harassment or abement or provocation the deceased has committed suicide. He, therefore, contended that looking to the facts and circumstances of the case the applicants are required to be enlarged on bail.
Mr.
Nanavati has also placed reliance on the decision reported in 2006 CRI. L.J. 105, in which it is observed that "Penal Code (45 of 1860), Sec-304B, S. 498-A, S.301 - Dowry Prohibition Act (28 of 1961), S.3 - Dowry Death - Evidence and proof - Father of deceased alone supported allegations of demand of dowry and cruelty meted out by appellants - Further he was gained over in course of his examination, and thereafter both brother and mother of victim also gave up and did not support prosecution allegations - Evidence of prosecution witnesses that there was never any demand for dowry by appellants and relationship between the deceased and appellants were quite good and cordial - Basic ingredients of offence under S.304-B - Not proved - Conviction of appellants on single testimony of witness who is not only highly interested but is also not above being gained-over. Further since information with regard to death of victim was sent to her parents' home and her brother was present at her cremation - conviction of appellants under S.201 also set aside."
As against this, learned APP Mr. Jani has contended that the conduct of the husband of deceased Hinaba is required to be considered in light of the evidence produced on the record. He has gone through the charge-sheet paper as well as the complaint. He has contended that in the complaint it is clearly stated by the complainant that "on 25.9.2011 at 9.15 p.m. he had proceeded to his village in train and there he came to know about the incident. Therefore, on 26.9.2011 they all have proceeded to village Moti Tumbdi in vehicle and reached there in the evening at 6.30 p.m. When they reached village Moti Tumbdi, cremation ceremony of his daughter was completed. At that time his son Dharmendrasinh met and he told the complainant not to disclose about the incident. He also informed that his phone was also taken away and he was not allowed to see the face of sister (deceased Hinaba) and, therefore, they all proceeded to their native. It is alleged that his daughter (deceased) was subjected to cruelty and harassed by her in-laws and her husband on the question of dowry and, therefore, she has committed suicide by consuming poisonous medicine." He has contended that the relatives of Hinaba were present, but, they were not allowed to see face of the deceased, which shows the conduct and behaviour of the family members of the applicants. He has also read the statements of Dharmendrasinh Ajitsinh Vaghela, brother of the deceased, recorded on 28.9.2011 and the statement of Manharba Ajitsinh Vaghela, mother of the deceased, in which both the witnesses have clearly stated that deceased has conveyed them regarding the cruelty and harassment caused by the present applicants as well as her husband. He has also read the statement of Bharatsinh Pratapsinh Jhala in which it is also stated that the applicants and their son (husband of the deceased) were demanding dowry and due to the harassment, the deceased has committed suicide. He has also read the statements of Siddhrajsinh Abhesinh Jhala and Manchhaba Sultansinh Jadeja. He has contended that from the statements of these witnesses, prima-facie, it is clearly established that the deceased has committed suicide due to harassment and cruelty caused by the applicants and her husband. He has contended that just to protect their skin, the applicants have not informed the relatives about the death of deceased and even the relatives, who were present, have not been allowed to see the face of the deceased before cremation which shows the conduct of the applicants. He has contended that Post Mortem of the body of the deceased was also not carried out. He has also contended that the marriage life of the deceased with the son of the applicants is hardly four months and, therefore, presumption is required to be drawn against the applicants. He has contended that the decision cited by the learned Counsel for the applicant would not be helpful to the applicants, in the facts of the present case.
Learned Advocate Mr. Buch, appearing on behalf of the original complainant, has contended that he has no objection if both the applicants are released on bail by this Court. As against this, learned APP has vehemently contended that the offence alleged against the applicants are not compoundable and, therefore, the submission made by the learned Advocate for the complainant is ill-founded.
Heard the learned Advocates for the respective parties. I have also perused the papers produced before me. From the statement of witnesses, it appears that the relatives of the deceased had gone to the place of incident, but, at that time they were not allowed to see the face of the deceased. It also appears that the post mortem of the dead body was also not performed. I have also gone through Section 113-A of the Evidence Act. Section 113-A reads as under :
"Presumption as to abetment of suicide by a married woman - 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."
Section 113-B reads as under :
"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 has 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 had caused the dowry death."
Here, in the present case, it appears that the marriage span of the deceased and the son of the applicants is hardly four months. From the perusal of statement of witnesses, it appears that the deceased had told her relatives that the applicants and her husband are demanding dowry and motorcycle and they are harassing the deceased. It also appears that without informing the relatives and parents of the deceased the cremation of dead body was carried out. Such type of attitude of the applicants and their son creates suspicion about their behaviour. If the applicants are innocent and if the death of the deceased was natural then the applicants would have shown the face of the deceased to her relatives and they would have immediately informed her father about the death. However, in the present case, the applicants have not informed the parents of the deceased and even without sending the dead body for post mortem, cremation of dead body was carried out. The conduct of the applicants and their son create some doubt and it appears that just to protect their skin they have tried to destroy the evidence. Looking to the conduct of the applicants, it clearly appears that they are the instigator, provocator and abettor. Looking to the facts and circumstances of the case, in my opinion, prima-facie, case is made out against the present applicants and, therefore, I do not deem it proper to entertain this application.
In above view of the matter, this application is dismissed. Rule is discharged.
(Z.K.SAIYED, J.) sas Top