HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
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)

—-Petitioner
Versus
State of Rajasthan Through P.P.

—-Respondent
__
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
Order
15/02/2018

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

August, 2017.

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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
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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
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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

hereby rejected.

(P.K. LOHRA)J.

Twinkle Singh/