Ms. Maithili Mehta learned APP waives service of rule on behalf of the State.
1. The applicants were charged and tried for the offences punishable under Sections 306, 498A read with section 114 of the Indian Penal Code ( for short IPC ) and also under Sections 3 and 7 of the Dowry Prohibition Act ( for short the Act ). A rigorous imprisonment of 10 years and a fine of Rs 5,000/- and a default sentence of two years came to be imposed upon the applicant Rajesh who is the husband of the deceased Chandrika. A rigorous imprisonment for three years and a fine of Rs 1000/- and default sentence of two months has been imposed on other applicants. Except applicant Rajesh who was not bailed out during trial, others were on bail through out trial.
The applicants urge this Court to enlarge them on bail on various grounds.
Learned counsel for the applicants has invited attention of this Court to the contents of the FIR, the testimony of the father and brother (Sanjay) of the victim and the call records of the mobile phone No. 9429468970 and 9824549595 respectively belonging to PW1 father of the victim and the victim to submit that the prosecution story about existence of grave circumstances immediately before death of the victim was belied by the fact that no calls were made from mobile no. 9824549595 on 30th June 2011 to mobile no. 9429468970 contradicting the claim of the complainant and witness Sanjaybhai. Learned counsel also pointed out that although from the mobile phone of the victim, calls on other mobile numbers were made on that day. It was also contended that, in fact, as probablised by the defence, P.W.1 had scuffle with the victim on 30th June 2011 by harbouring a suspicion with regard to her relation with one Dashrathbhai who is the husband of the victim s younger sister. Learned counsel would also contend that a probablised story of the defence was accepted by prosecution during cross-examination of D.W.1 that the victim was threatened by her father. It was argued that, since the statement of the accused was inadmissible in evidence, it could not have been relied upon even for contradiction or corroboration in the cross-examination of accused no. 5. In this context, learned counsel pointed out two decisions of Hon ble Supreme Court in Mrs Shakila Khader Vs Nausher Gama in AIR 1975 SC1324 and Raghunandan Vs. State of U.P AIR 1974 SC 463.
Learned counsel would also contend that infact the victim attended the school in the Academic Year 2008-2009 and 2009-2010 and therefore she was not living with her in-laws place and was living in the house of her parents and that the demand in respect of TV was belied by the admission of witness Sanjay to the effect that in one room house of the applicants TV was already in existence. It was argued that complaint at Exh. 35 was lodged one day after the incident under the influence of one MLA Bhagwansinh who was uncle of the complainant.
It was also contended that, initially, as admitted by Dy. SP Ravat, an accidental death was recorded and no complaint was made at the time when the complainant along with the police was present at the house of the victim immediately after the incident. It was also argued that, admittedly, the prosecution did not bring on record the statements of as many as 9 neighbours speaking about innocence of the applicants. It was argued that there was no substantial evidence to support the prosecution story that accused no.1 disliked the victim and he had extramarital affair with a girl belonging to Panchal community as claimed by the prosecution and that the applicants made demand for dowry, money for T.V and fridge and created such grave demands circumstances inducing the victim to consume poison to end her own life. Learned counsel submitted that under such circumstances no presumption could have been made under Section 113 A of Indian Evidence Act even as none of the ingredients constituting evidence under Section 306 and 498A of IPC were made out.
Learned APP would submit that the marital duration of the victim was hardly three years and one month, and she was staying in joint family, and the question of putting forth the statements of the neighbours did not arise for the reason that prosecution case was not that of quarrel but that of the victim being deliberately ignored by accused no.1 and demand of money for fridge and TV by the accused. It was submitted that such fact would only be known to her parents and her other family members. It was submitted that the circumstances were so grave that the victim consumed poison and gave up her life. It was argued that FIR was lodged immediately after recording the accidental death and therefore,there was no delay.
Learned APP would also submit that there were phone calls from the mobile phone of the victim and the school leaving certificate testified her career as a student was of no avail to the applicant for want of proper evidence of its authorship; the applicant not being author of such certificate and no author having been examined by the applicants. It was argued that admittedly the victim was with her in-laws for seven months and she has given up her life on account of facts and circumstances established by the prosecution.
Considering the evidence on record and the arguments advanced by both the sides, it appears that the main allegation in so far as accused no.1 i.e. husband of the victim is concerned was his ignoring and disliking the victim and his having extramarital relation with a girl belonging to Panchal community.
The allegation with regard to demand for money to buy TV and fridge were substantially made against the applicant Shakuntala @ Rinku and her husband accused no. 4 who was admittedly residing at Ahmedabad and not in the joint family along with the victim. The evidence on record does not show any allegations worth the name for demand of money by accused no1, 3 and 5. Prima facie, therefore, allegation against the accused no. 2 and 4 who admittedly were residing in Ahmedabad ie a place away from the city of victim s city does not inspire confidence of this Court.
So far as accused no. 1 is concerned, the witnesses have made bald allegation without making out the case. It is worthwhile to note at this stage that the victim complained against accused nos. 2 and 4 having taken the accused no.1 to Ahmedabad to enable him to get the job and she had to be consoled by her parents saying that it was good that the said accused persons had taken him for to get him a job. The Court is conscious of the fact that the evidence cannot be appreciated at this stage, but only with a view to read the mental state of the victim, the above fact is relevant at this stage so as to determine what the victim is alleged to have perceived was a reality or mere imagination. She was, thus, not able to accept circumstances favourable to her and thus wanted to complain to her parents even on that. It appears that she did not like the intervention of accused nos 2 and 4 in helping accused no. 1 to get the job. Keeping in view such mental state of victim and keeping in view the nature of allegations and bald assertions, it is difficult at this stage to countenance the fact that circumstances mentioned in Sections 306 and 498A of IPC were in existence. The circumstances contemplated under Section 498A of IPC are not with regard to mere harassment or minor marital discord. The language in Section 498A of IPC clearly indicates that harassment should be of such a degree as would leave no option for the victim except to take extreme step. Nothing is pointed out by the prosecution in this regard in the evidence of any of the witnesses. In fact, the most relevant circumstances in a case like this would be the happenings immediately preceding the incident. In the instant case, the incident allegedly occurred in the early morning at 7:00 clock on 1st July 2011 and on preceding evening around 8:00 or 9:00 clock pm, the victim is alleged to have complained to PW1 and her mother expressing her frustration and inability to tolerate the harassment meted out to her by her in-laws any more. Under such circumstances, she is said to have called up her parents to fetch her to their place. Thus, according to the prosecution very grave circumstances at this stage around 9:00 clock on 30th June 2011 existed. PW1 testifies that the victim initially called him up from mobile no. 9824549595 to express herself as above. But this story is belied by the call details and the evidence of the concerned witnesses testifying that no calls at all were made from the mobile no. 9824549595 on 30th June 2011. Thus, the very foundation of the prosecution appears to have been shaken.
Under the above circumstances, it is not in the interest of justice to detain the applicants behind bars during the pendency of the appeal. The applicants are therefore required to be enlarged on bail.
12. In above view of the matter, the present application deserves to be allowed and the same is allowed. The sentence imposed by the learned 5th Addl. Sessions Judge, Nadiad in Sessions Case No. 131/2011 on 29th August 2013 against the applicants shall remain under suspension till final hearing and disposal of the appeal. The applicants No.2, 3 and 4 are ordered to be continued on bail, on same bail bond and surety and on the same terms and conditions as imposed upon them by the trial court except the condition requiring them to mark presence before the concerned police station.
13. The applicant No.1 original accused No.1 is ordered to be released on bail on his furnishing a bond of Rs 10,000/- (Rupees Ten thousand only ) with one surety of the like amount to the satisfaction of the trial court and subject to the conditions that the applicant no.1:
(a) shall deposit the passport, if any, with the trial court.
(b) shall not leave the State of Gujarat without permission of this Court.
(c ) shall undertake that he will make himself available in this appeal as and when required by the Court.
(d) shall not take undue advantage of his liberty or abuse his liberty.
(e) shall maintain law and order.
14. Rule is made absolute. Direct service is permitted today.
(G.R.UDHWANI, J.) mary Page 11 of 11