Santosh Gupta vs State on 9 January, 2018


% Decided on: 9th January, 2018

+ BAIL APPLN. 1773/2017

SANTOSH GUPTA ….. Petitioner

Represented by: Mr. Udayan Jain, Mr. Kamal
Sharma, Advs.

STATE …. Respondent
Represented by: Mr. Hirein Sharma, APP with
SI Mahendra PS Keshav


1. By this petition the petitioner seeks regular bail in case FIR
No.765/2016 under Section 498A/304B/34/302 IPC registered at PS Keshav

2. Learned counsel for the petitioner submits that the two Whatsapp
messages on the basis of which it is claimed that the petitioner was harassing
the daughter-in-law/ the deceased do not implicate the petitioner by way of
dowry harassment or any other mental cruelty. The deceased was in the first
trimester of her pregnancy and the advise by the mother-in-law not to squat
for a long time cannot be said to be unwarranted for the reason the deceased
was weighing 45 Kgs, had low B.P. and was not in good health with regular
follow-ups. Merely because the mother-in-law declined to accede to the
request by the deceased to go to her parent’s house cannot be said to be a

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cruelty or harassment in relation to demand of dowry. The deceased died
due to Aluminium Phosphide poisoning which cannot be given forcefully
and would at best be a case of suicide. He further states that after the
deceased consumed Aluminium Phosphide, it was the petitioner and her son
who took her to the hospital and on reaching the hospital besides collecting
Gastric Lavage of the deceased she was also put on ventilator including
oxygen, and the MLC of the petitioner reveals that on reaching the hospital
she was drowsy and irritating which would have caused the injuries while
treatment was going as the first sheet of the treatment shows that there was
no injury marks on the deceased. He further states that since the charge-
sheet has already been filed and the deceased is suffering from number of
ailments, she be released on bail.

3. Learned APP for the State on the other hand contends that initially
FIR was registered for offence punishable under
Section 498A/304B IPC,
however on the subsequent opinion of the post-mortem doctor
Section 302
IPC has also been added as the injuries on the face were opined to be by
force. Learned APP for the State further states that the main allegation of
harassment even as per the last Whatsapp are against the petitioner. Hence
no bail be granted to the petitioner.

4. The above-noted FIR was registered on the complaint of Shashi Garg,
mother of Neha who stated that her husband had received a phone call from
Neha’s father-in-law stating that she was unwell. So she along with her
husband reached the hospital. They were not allowed to meet their daughter
and after a short while it was told that the girl had died. The incident had
occurred the day before at 12 Noon and a quarrel had taken place between
her daughter and mother-in-law on Saturday. Her daughter used to tell her

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that her mother-in-law used to give example of dowry given by other
persons and that they did not get anything. Her mother-in-law was also not
happy with the gifts sent on Diwali and was saying that nothing has been
given to her. The day before when Neha told to her husband he stated that
she should not take the words of her mother seriously and the issue of toilet
was not a big issue. Her daughter was pregnant and later she came to know
that her daughter died due to torture. It is alleged that the in-laws used to
torture her daughter. It is also alleged that earlier whenever even Neha had
pain in stomach, her mother-in-law and her husband used to make phone
calls to tell them but yesterday none of them informed them.

5. As per the post-mortem report and the FSL report, the deceased died
due to poisoning of Aluminium Phosphide. The discharge summary of the
deceased reveals that her gastric lavage was collected, sample whereof was
seized and handed-over to the Investigating Officer. Further on being
hospitalised the deceased was given ventilator support which would
obviously include an oxygen mask. There is merit in the argument of
learned counsel for the petitioner that the injuries could be during treatment
as at the time of admission it is categorically noted that the deceased had no
injury on her body. Further the MLC notes the deceased to be drowsy and
irritating. However, the post-mortem report notes three external injuries
which could be caused by blunt/ trauma as under:


1. Reddish contusion of size 0.3 x 0.1 cm was present over
the right side of face, situated 2.1 cm above and 0.5 cm
away from the symphysis menti.

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2. Reddish contusion of size 0.2 x 0.1 cm was present over
the right side of face, situated 2.1 cm above and 0.3 cm
away from the symphysis menti.

3. Fresh superficial laceration of size 01 x 0.5 cm was
present over the inner aspect of lower lip.”

6. Further as per the treatment sheet placed on record and as per the
post-mortem report the deceased was pregnant and it was her first trimester.
The medical sheets have been placed on record to show that the weight of
Neha was 45 Kgs, she had low B.P. and she was on a regular follow-up. It
is in this light the last two whatsapp messages have to be read which are as

“i) Mom ab bahut ho gaya
Ab to mere saas mujhe toilet ke time ko bhi lekar bolne
lagi ki thuje itna time lagta hai
Mujhe yaha see le jayo please aaj hi

ii) Mana kar diya ma bhejne se.”

7. Thus, the two allegations soon before the death against the petitioner
are that she refrained the deceased from sitting for too long in the toilet and
refused to send her apparently to her parental place. The two messages do
not speak about a dowry harassment and at this stage refraining from giving
any final opinion it would be worth mentioning that considering that the
deceased was in the first trimester of her pregnancy and an advise rendered
not to squat for long or not to travel cannot be said to be harassment. The
other allegations against the petitioner are her dissatisfaction for the gifts
received at the time of Diwali.

8. Considering the nature of allegations, the fact that the deceased died
of Aluminium Phosphide poisoning which is most likely suicidal in nature,

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the petitioner has been in custody for the last 8 months and charge-sheet has
been filed and due to the medical condition of the petitioner, this Court
deems it fit to grant bail to the petitioner. It is therefore directed that the
petitioner be released on bail on her furnishing a personal bond in the sum of
₹25,000/- with one surety bond of the like amount subject to the satisfaction
of the learned Trial Court, further subject to the condition that the petitioner
will not leave the country without the prior permission of the Court
concerned and in case of change of address the same will be intimated to the
Court concerned by way of an affidavit.

9. Petition is disposed of. Order dasti.

10. The date already fixed stands cancelled.

JANUARY 09, 2018

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