HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
S.B. Criminal Misc. Bail No. 10858 / 2017
Gapa Ram S/o Shri Bijla Ram, Aged About 26 Years, R/o Khalwana
Nada, Padru, P.S. Siwana, District- Barmer (Behind the Bar Since
13-2-2017 And Presently Lodged in Sub-Jail Balotra)
State of Rajasthan Through P.P.
For Petitioner(s) : Mr. M.M. Dhera.
For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.
For Complainant(s): Mr. Rameshwar Dave.
HON’BLE MR. JUSTICE P.K. LOHRA
This is second bail application on behalf of petitioner Gapa
Ram under Section 439 Cr.P.C. in connection with FIR
No.191/2016, registered at Police Station Siwana, District Barmer.
In the FIR, petitioner and five other accused-persons were
charged for offence under Sections 498A and 304B IPC.
Police after investigation filed charge-sheet in the matter for
aforesaid offences on 28th of February, 2017 against petitioner
alone. Presently, trial in Sessions Case No.18/2017 is under
progress before District Sessions Judge, Balotra.
At the behest of petitioner, first bail application bearing
No.4254/2017 was filed but the same was dismissed on 3 rd of
(2 of 4)
Learned counsel for the petitioner, Mr. M.M. Dhera, submits
that prima facie offences are not made out inasmuch as neither
there was any demand of dowry at the time of marriage nor any
incriminating material has emerged during investigation. Learned
counsel would contend that although it is a case of unnatural
death of Ms. Leela, wife of petitioner, within seven years of
marriage, but, in absence of tangible evidence of subjecting her to
cruelty and harassment soon before her death by the petitioner
with any demand of dowry offence under Section 304B is not
made out. Learned counsel has urged that looking to the nature
of marriage, which is ata-sata marriage, and prevailing customs
within the community, where dowry system is non-existent, per se
it is a case of false implication of the petitioner. Highlighting
change in the circumstances after rejection of first bail application,
it is submitted by learned counsel that during trial so far eight
witnesses are examined and out of them PW1 Akha Ram, PW2
Punja Ram, PW3 Chunni Lal, PW5 Tulsa Ram and PW7 Suki Devi
have not supported prosecution case. It is argued by learned
counsel that all are near relatives of deceased but they have
completely repudiated the demand of dowry with a positive
assertion that such custom does not prevail within the community.
While, referring to the statements of PW3 Sanjay Kumar, learned
counsel submits that during cross-examination the witness has
admitted that there was no injury on the person of deceased Ms.
Leela. Mr. Dhera has also urged that some of the witnesses has
also deposed so as to highlight mental ailment of the deceased
and her erratic behaviour to prima facie make out a simple case of
(3 of 4)
suicide without any cause. Lastly, learned counsel submits that
prosecution has cited twenty seven witnesses and so far only eight
witnesses have been examined, and therefore, conclusion of the
trial is likely to take considerable time is yet another mitigating
factor for not keeping the petitioner under further incarceration,
who is in custody since 13th of February, 2017.
Per contra, learned Public Prosecutor has vehemently
opposed the second bail application of petitioner. It is argued by
learned Public Prosecutor that after rejection of first bail
application there is no change in the circumstances much less
substantial change. It is also submitted by learned Public
Prosecutor that considering serious delinquencies of the petitioner,
who is husband of deceased, his bail plea is liable to be nixed.
Learned counsel for the complainant, Mr. Rameshwar Dave,
has also reiterated the arguments advanced by learned Public
Prosecutor. Mr. Dave would contend that death of Ms. Leela by
burning under mysterious circumstances within six months of
marriage is sufficient to make out offence under Section 304B IPC.
I have heard learned counsel for the rival parties and
perused the materials available on record including the statements
of witnesses recorded during trial.
From the allegations, made in the FIR, it is discernible that
complainant has castigated petitioner and other accused persons
for perpetrating cruelty on deceased Ms. Leela for demand of
dowry. Apart from the allegations in the FIR, PW6 Purkha Ram-
complainant has reiterated the allegation of harassment meted out
to his deceased daughter Ms. Leela for demand of dowry. It is
(4 of 4)
also noteworthy that unnatural death of Ms. Leela by burning has
occasioned within six months of marriage at her matrimonial
home and there is no material on record to show that she was
suffering from mental ailment. The autopsy report and evidence
of PW3 Sanjay Kumar are clearly and unequivocally showing cause
of death due to 55-60% burn. At the moment, trial is also in
progress and more than eighteen witnesses are yet to be
examined including Dr. Narayan Singh and Dr. Gautam Chand.
In this view of the matter, at this stage, I feel dissuaded to
accept this second bail application.
Consequently, the second bail application fails and same is