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
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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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