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Delhi HC: Parameters for grant of bail to accused prosecuted for Dowry death

IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 21st May 2020
BAIL APPL No. 875/2020

SHYAM KISHOR

Vs

THE STATE.

CORAM: JUSTICE PRATHIBA M. SINGH

Crl. M.A. Nos. 6226-27/2020

1. These are applications for exemption from filing dim documents and annexures with improper margin and exemption from filing a certified copy of annexures. Allowed, subject to all just exceptions.

2. Applications are disposed of.

Brief Facts

3. Ms. Abhilasha and Mr. Shyam Kishor got married on 9th December, 2016 in the hometown of Abhilasha in Bihar. At the time of marriage, Shyam Kishor, who is a Software Engineer, was working in a leading IT Company. Soon after the marriage, he sustained a leg injury in an accident due to which he had to give up his job. After recovering from his injury, he joined his elder brother in his business. The couple moved to Delhi and were living in Delhi. On 15th October, 2018, Abhilasha was found dead at her residence in Delhi where she used to live with her husband and his niece – Ms. Harshita a.k.a. Akanksha i.e., the Petitioner’s sister’s daughter.

4. The case of Shyam Kishor is that on the fateful day, he had gone to the New Delhi railway station to drop his niece who was going back to her hometown. To support the fact that he had gone to the railway station, documents have been placed on record of the Ola cab booking and the receipt thereof for which payment was made by him. On his way to the station, he received a call from his wife Abhilasha. He claims to have immediately returned back and upon reaching home, found that his wife had committed suicide by hanging herself from the fan. He thereafter called the Police and took his wife to the hospital.

5. Shyam Kishor was taken into custody on 17th October, 2018 and has remained in custody since then. Five bail applications have been rejected by the ld. Additional Sessions Judge (hereinafter, “ASJ”). One bail application was also filed before this Court but was withdrawn on 21st October, 2019.

Submissions

6. Mr. Jitender Jha, ld. counsel for the Petitioner, submits that the parents of Abhilasha came to Delhi immediately on the next date i.e., 16th October, 2018. Shyam Kishor had, in fact, provided the mobile number of his father-in-law to the Police and had himself called the Police Control Room when he saw that his wife had committed suicide. Ld. counsel submits that the husband and wife were happily living in Uttam Nagar,Delhi in a peaceful manner and there was no discord between the two of them. It is asserted that Shyam Kishor never demanded any dowry or any monetary help from his in-laws. In fact, bank statements filed on record are relied upon to urge that Shyam Kishor had been depositing money in his wife’s account and took care of all of her needs. It is submitted that the Petitioner’s in-laws were running a grocery shop in Ludhiana and no occasion arose for any demand of dowry from them.

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7. Mr. Jha, ld. counsel, also makes reference to the statements given by the father of the deceased-wife on 16th October, 2018, one day after her death. It is pointed out that in the first statement before the Judicial Magistrate, though there is mention of some gifts being given to the Petitioner by the deceased’s family at the time of marriage, there is no allegation in the said statement of violence or dowry being demanded soon before her death. In fact, the deceased’s father specifically states “I do not know that in-laws used to beat Abhilasha”. The only allegation is against the Petitioner’s niece who, according to Abhilasha’s father, used to create differences between the couple. Thus, there was no allegation of any violence against the Petitioner. Ld. counsel for the Petitioner argues that the father of the deceased later changed his statement under Section 161 of the Code of Criminal Procedure, 1973 (hereinafter, “CrPC”) thereafter to allege that dowry was demanded soon before the suicide. This, as per the ld. counsel, itself shows that the allegation of dowry was an afterthought.

8. Mr. Jha, ld. counsel, further submits that due to the contradictory statements made by the father, the ASJ had ordered an inquiry into the matter. The inquiry report is stated to have been submitted to the ASJ. It is submitted that the charge sheet has also been filed and that there are 26 witnesses. Trial in the matter is, however, yet to commence.

9. On behalf of the State, Mr. Kewal Ahuja, ld. APP, submits that the death has taken place within seven years of marriage and hence, there is a presumption against the Petitioner under law. Ld. counsel contends that the various statements made are not contrary to each other and in fact, supplement each other. He argues that though the niece, who is the co-accused, may have been protected from coercive action but the case of the Petitioner and the niece is not on the same plank. He vehemently contends that the statements given by the father, mother and sister of the deceased clearly make out a case of dowry death. It is further submitted that the supplementary charge sheet filed by the Police shows that there were some injuries which were ante-mortem in nature and were fresh in duration. Ld. counsel also relies upon Section 113B of the Indian Evidence Act, 1872 (hereinafter, “IEA”) to submit that there is a presumption as to dowry death having taken place whenever the deceased is proven to have been subjected to cruelty or harassment, coupled with a demand for dowry, soon before her death.

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Findings and Conclusion

10. This Court has heard the ld. counsel for the parties. The facts show that the deceased passed away just under two years of marriage. The presumption in law under Section 113B of the IEA would apply if it is shown that there was either cruelty or harassment, coupled with a demand for dowry, soon before the death of the deceased. Insofar as violence or physical harassment is concerned, there appears to be no allegation against the Petitioner, as is clear from the statement of the father, mother and sisters of the deceased. Insofar as the demand for dowry and other forms of harassment are concerned, the charge sheet has already been filed. The prosecution has also arrayed the witnesses whom it intends to examine and trial is yet to commence. At this stage, the Court is not to analyze the statements of the father, mother and sisters of the deceased in great detail.

11. After broadly perusing the bank statements of the Petitioner and the deceased, this Court is of the opinion that the Petitioner is financially well-settled. The conduct of the Petitioner, to the extent that he immediately rushed back from the railway station upon receiving a phone call, called the Police, took the deceased to the hospital and contacted the in-laws, goes to show that he does not pose any flight risk. The documents filed on record also show that he indeed booked an Ola cab on the fateful day and was not at home. The bank account statements show that he had been regularly depositing money in his wife’s account and there were withdrawals from the same as well. The death of the deceased is quite unfortunate, however, the circumstances that may have led to the same are not clear at this stage. The same would have to be considered at the stage of trial.

12. The presumption in law of a `dowry death’ is meant to act as a deterrent to the demand of dowry and to ensure that women are not harassed for the same. However, currently, the question is whether the Petitioner ought to be released on bail. In Savita v. State of Delhi, (2019) 10 SCC 29, which was a case under Sections 498-A and 304 of the Indian Penal Code, 1860 (hereinafter, “IPC”), since the accused had already been in jail for 27 months out of a total sentence of 10 years’ rigorous imprisonment, the Supreme Court thought it fit to grant bail. In the case of Thangela Narendra alias Chinnu v. State of Karnataka, (2019) 14 SCC 709 as well, the Supreme Court, considering the fact that investigation had already been completed and the accused had been in jail for around a year, granted interim bail on admission. In Kamal v. State [Bail Application No.4211/2016, decided on 1st December, 2006], a ld. Single Judge of this Court had observed that despite the presumption under Section 113B of the IEA, the relationship between the accused and the deceased, which were reflected in letters written by the accused, persuaded the Court to grant bail. Recently, in Yashpal v. State (Govt. NCT of Delhi) [Bail Application No.1340/2019, decided on 29th May, 2019], a ld. Single Judge of this Court, considering that the details of dowry were not given to the investigating officer and the fact that the trial was likely to take some time, granted regular bail to the accused.

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13. In the present case, the application for bail has been moved during the COVID-19 lockdown. The Petitioner is educated and appears to be well-settled. The charges against the Petitioner have to be thrashed out at trial. The investigation is already completed. Protection against any coercive action has been granted to the niece, however, it is not disputed that the niece is regularly appearing before the Trial Court. The Petitioner has already undergone imprisonment for around one year and seven months. This Court is thus of the opinion that the Petitioner is entitled to be released on bail, subject to on the following terms and conditions:

i. The Petitioner shall furnish a bail bond for a sum of Rs.2 lakhs with one surety of the like amount to the satisfaction of the Trial

BAIL APPL No. 875/2020

Court. Subject to the said bail bond and surety being given, he shall be released on bail, if not required in any other case;

ii. The Petitioner shall not leave Delhi without the permission of the SHO, Uttam Nagar;

iii. The Petitioner shall not contact any of the witnesses of the prosecution or prejudice the trial in any manner;

iv. The Petitioner shall surrender his passport to the Trial Court, within a period of two weeks, after lifting of the lockdown.

14. Ordered accordingly. The petition is allowed in the above terms. All pending applications are disposed of.

PRATHIBA M. SINGH
JUDGE
MAY 21 2020

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