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Mahesh Kumar vs State Of Rajasthan on 13 November, 2018

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 8389/2018

Mahesh Kumar S/o Sh. Lalchand, Aged About 25 Years, B/c
Paliwal, R/o Mawa, P.S. Ramdevra, Dist. Jaisalmer (Presently
Lodged In Sub Jail, Pokaran, Dist. Jaisalmer)

—-Petitioner
Versus
State of Rajasthan, Through PP

—-Respondent

For Petitioner(s) : Mr. Vineet Jain.

For Respondent(s) : Mr. O.P. Rathi, Public Prosecutor.

For Complainant(s) : Mr. L.D. Gaur.

HON’BLE MR. JUSTICE P.K. LOHRA

Order

13/11/2018

Accused-petitioner, facing trial for offence punishable under

Sections 498A 304B IPC in Sessions Case No.67/2017, pending

before Additional Sessions Judge, Pokaran, has laid this second

bail application under Section 439 Cr.P.C. The aforesaid case is

founded on FIR No.21/2017, registered at Police Station

Ramdevra, District Jaisalmer.

On behalf of accused-petitioner, first bail application bearing

No.6099/2017 was laid and the same was rejected by a detailed

order on 11.08.2017.

Arguing on this second bail application, it is submitted by

learned counsel for the accused-petitioner, Mr. Jain, that after

rejection of first bail application there is substantial change in the
(2 of 4) [CRLMB-8389/2018]

circumstances. Elaborating his submissions in this behalf, learned

counsel has referred to statements of PW1 Thirpal Paliwal-father

of deceased, and PW4 Kamal Paliwar-brother of the deceased.

Relying on the cross-examination of PW1 Thirpal Paliwal, it is

submitted by learned counsel, Mr. Jain, that prima facie his

statements are not inculpatory so as to indicate that petitioner has

subjected deceased to cruelty or harassment in connection with

any demand of dowry soon before her death. It is argued by

learned counsel that prosecution has also set up a case that on

the crucial day, accused was not present at Ramdevra. Learned

counsel has further contended that a cumulative reading of the

statements of PW1 are sufficient to show that there was no

serious acrimony between the spouses and during subsistence of

two years’ matrimony the deceased hardly remained for six

months at her matrimonial home. It is also submitted by learned

counsel that before lodging of the FIR, no complaint was filed by

the deceased or her family members about demand of dowry or

harassment meted out to her for demand of dowry. Adverting to

the statements of PW4 Kamal Paliwal-brother of deceased, it is

submitted by learned counsel that his statements are at variance

to the statements of PW1 Thirpal Paliwal-father of the deceased.

It is also argued by learned counsel that the statements are per

se projecting embellished version inasmuch as he has made

marked improvements from his police statements. While taking a

dig at the charge-sheet submitted by investigating authority, it is

submitted by learned counsel that police has not collected any

cogent evidence against the petitioner and further despite

allegations against father-in-law, mother-in-law and sister-in-law

of the deceased, they are not being charge-sheeted. Lastly,
(3 of 4) [CRLMB-8389/2018]

learned counsel contends that so far during trial only four

witnesses have been examined and the prosecution has cited forty

witnesses, therefore, considering the fact that petitioner is in

custody since 07.04.2017, he may be enlarged on bail, as

completion of the trial is not in offing.

Per contra, learned Public Prosecutor has opposed the second

bail application of petitioner in general.

Mr. L.D. Gaur, learned counsel appearing for complainant,

has vehemently opposed the second bail application. It is

submitted by Mr. Gaur that the evidence of prosecution witnesses,

are yet to be construed by learned trial Court and at this stage, it

would not be appropriate to appreciate the evidence to petitioner’s

advantage for grant of bail. It is also submitted by Mr. Gaur that

so far doctor has not been examined, and therefore, at this stage,

bail plea of the petitioner is liable to be thwarted.

I have bestowed my consideration to the arguments

advanced at the Bar and perused the statements as well as

charge-sheet.

While it is true that it is a case of unnatural death within

seven years of matrimony and cause of death is consumption of

pesticide as the report of vicera indicates presence of Aluminum

Phosphide but then a very significant fact is that no material

evidence is available on record to show that there was serious

acrimony between the spouses precisely for demand of dowry

immediately before death of deceased. A cumulative reading of
(4 of 4) [CRLMB-8389/2018]

the statements of PW1 and PW4 has also emerged out a very hazy

picture of perpetrating cruelty and harassment by petitioner to the

deceased soon before her death.

In view thereof, while refraining to make any comment on

merits of the case, I feel persuaded to accept this second bail

application of petitioner.

Accordingly, this second bail application under Section 439

Cr.P.C. is allowed and it is ordered that accused-petitioner,

Mahesh Kumar S/o Sh. Lalchand, arrested in connection with F.I.R.

No.21/2017 of Police Station Ramdevra, District Jaisalmer, may be

released on bail; provided he furnishes a personal bond of

Rs.50,000/- with two sureties of like amount to the satisfaction of

learned trial Court with the stipulation to appear before that Court

on all dates of hearing and as and when called upon to do so.

(P.K. LOHRA),J

Twinkle Singh/

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