HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Criminal Misc. Bail No. 6343 / 2017
1. Padma Ram S/o Ladu Ram, Aged About 22 Years, By Caste Nai,
Resident of Peeraniyo Ki Dhani, Setrava Police Station Dechu
District Jodhpur.
2. Smt. Asu Devi W/o Ladu Ram, Aged About 45 Years, By Caste
Nai, Resident of Peeraniyo Ki Dhani, Setrava Police Station Dechu
District Jodhpur.
(At Present Lodged in Central Jail, Jodhpur).
—-Petitioners
Versus
The State of Rajasthan
—-Respondent
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For Petitioner(s) : Mr. Mahesh Bora, Senior Advocate with Mr.
Saaransh Viz., Mr. Ramesh Purohit and Mr.
Varun Gupta.
For Respondent(s) : Mr. K.V. Vyas, Public Prosecutor.
For Complainant(s): Mr. J.S. Choudhary, Senior Advocate with Mr.
Tarun Dhaka.
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HON’BLE MR. JUSTICE P.K. LOHRA
Order
03/10/2017
Accused petitioners, on being apprehended pursuant to
investigation into FIR No.120/17 of Police Station Dechu, District
Jodhpur, have laid this bail application under Section 439 Cr.P.C.
In the FIR, besides both the petitioners, accused Lalu Ram is
also charged for offence under Sections 498A 304-B IPC. Upon
completion of investigation, police submitted charge-sheet against
all the three accused persons for offence under Section 304-B/34
IPC.
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Mr. Mahesh Bora, learned Senior Counsel, submits that
allegations of subjecting deceased to cruelty or harassment in
connection with any demand for dowry in the FIR and police
statements of complainant Champa Ram are omnibus. Learned
Senior Counsel would, therefore, contend that basic ingredient for
constituting offence of “dowry death” within the meaning of
Section 304-B IPC is conspicuously missing in the matter. Learned
counsel has urged that there are serious contradictions in the
police statements of complainant Champa Ram and Ms. Premi
Devi (wife of complainant and mother of deceased) inasmuch as
she has projected an improved version contrary to the recitals in
the FIR. Mr. Bora, learned Senior Counsel has also placed reliance
on the police statements of three independent witnesses; Purak
Singh, Dalpat Singh and Devi Singh, who are neighbours of the
petitioners. While referring to the statements of these witnesses,
learned Senior Counsel has argued that none of them have
insinuated the petitioners of perpetrating cruelty or harassment to
the deceased for demand of dowry. Learned counsel has also
submitted that as per the statements of three independent
witnesses, deceased was suffering from epilepsy and was under
treatment. Learned counsel has further submitted that although
mother of the deceased in her police statements has alleged that
she received a phone call from her daughter deceased Mamta just
before the calamity but those revelations are not inspiring
confidence inasmuch as during investigation call details have not
been collected by the investigating agency. Lastly, learned Senior
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Counsel has submitted that autopsy report of the deceased is
clear and unequivocal showing cause of death as “antemortem
drowning leading to asphyxia and then death”. Elaborating his
submission regarding postmortem report, learned Senior Counsel
has argued that only some abrasions and bruises were found on
the dead body and absence of any external injury on abdominal
wall of the deceased is sufficient to infer that the so called injuries
might have been sustained by the deceased when she jumped into
water tank.
Per contra, learned Public Prosecutor submits that death of
Ms. Mamta within fourteen months of marriage and visible sign of
external injury on her person is sufficient to draw a presumption
about offence under Section 304-B IPC. Learned Public Prosecutor
submits that allegations of cruelty or harassment for demand of
dowry are very much discernible from FIR as well as the
statements of witnesses recorded by police and therefore offence
under Section 304-B IPC is clearly made out against the
petitioners. Learned Public Prosecutor has argued that the plea
sought to be raised by petitioners that deceased was suffering
from epilepsy, is wholly untenable sans any evidence to
substantiate the same. Learned Public Prosecutor has also
submitted that visible signs of injuries on some body parts of the
deceased including her back, are prima facie sufficient to show
that she was subjected to cruelty and harassment by the
petitioners.
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Mr. J.S. Choudhary, learned Senior Counsel appearing for the
complainant, has reiterated the arguments advanced by learned
Public Prosecutor. Learned Senior Counsel, while referring to
police statements of Premi Devi, has urged that prima facie
offence of demand for dowry immediately before death is available
so as to constitute offence under Section 304-B IPC. Learned
Senior Counsel lastly submitted that looking to the short duration
of matrimony, i.e. 14 months, and unnatural death of deceased
with requisite evidence of dowry demand, presumption under
Section 113-B of the Indian Evidence Act 1872 can be pressed into
service.
I have bestowed my consideration to the arguments
advanced at the Bar and perused the materials available on
record.
There remains no quarrel that deceased Ms. Mamta has not
died a natural death and undeniably her death is unnatural under
certain mysterious circumstances. The so called ailment of the
deceased, that she was suffering from epilepsy, is prima facie, not
visible from the materials available on record, and moreover the
defence has not been able to substantiate the same.
Unnatural death of a lady during subsistence of matrimony
in tiny span of 14 months coupled with allegations of cruelty or
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harassment with demand of dowry cannot be underplayed at this
stage while considering bail plea of the petitioners. The statement
of mother of deceased also cannot be ignored wherein she has
asserted that soon before death of her daughter demand for
dowry was made. Even otherwise, the expression “soon before” is
a relative term which is required to be considered under specific
circumstances of each case and no straitjacket formula can be laid
down by fixing any time of allotment. As such, the term “soon
before” is synonymous with the term “immediately before”.
It is also noteworthy that the Court while dealing with grant
of bail can only satisfy itself where there is any genuine case
against the accused and the prosecution will be able to produce
prima facie evidence in support of the charge. At this stage, Court
is not expected to scrutinize evidence so minutely with precision
as if to ascertain the guilt of the accused beyond reasonable
doubt.
In view of foregoing discussion, while refraining to make any
comment on merits, in the backdrop of facts and circumstances of
the case, I feel disinclined to enlarge the petitioners on bail.
Resultantly, bail application fails and same is hereby
dismissed.
(P.K. LOHRA)J.