Gujarat High Court
Kamleshkumar Anilkumar Jha vs State Of Gujarat on 22 February, 2022
Author: Nirzar S. Desai
Bench: Nirzar S. Desai
R/CR.MA/21595/2021 ORDER DATED: 22/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/CRIMINAL MISC.APPLICATION NO. 21595 of 2021
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KAMLESHKUMAR ANILKUMAR JHA
Versus
STATE OF GUJARAT
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Appearance:
MR DEV D PATEL(8264) ADVOCATE with
MR NEERAJ J VASU(3159) for the Applicant
MR HIMANSHU K. PATEL, APP for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE NIRZAR S. DESAI
Date : 22/02/2022
ORAL ORDER
1. Heard learned advocate Mr.Dev Patel for learned advocate Mr.Neeraj Vasu for the applicant and learned Additional Public Prosecutor for the Respondent - State.
2.1 By way of this application, the applicant has prayed for enlarging him on regular bail in connection with the First Information Report ('FIR' for short) being I- C.R.No.11191065210613 registered with Narol Police Station, Dist.Ahmedabad City for offences under Sections 306, 323, 498A and 114 of the Indian Penal Code and Sections 3 and 7 of the Dowry Prohibition Act.
2.2 As per the 'FIR' dated 04.05.2021 registered by one Suryakant Ramnandan Mishra wherein he has stated that his daughter viz. Priyanka married to the present applicant in the year 2018. She was properly taken care of by the in-laws for about period of one month after the Page 1 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 marriage but thereafter they started harassing the daughter of the complainant. The present applicant used to taunt the daughter of the complainant that no gift was given to him during the wedding and even family members also used to taunt and harass his daughter - Priyanka. As per the FIR, considering the aforesaid taunts and mental harassment which resulted into the frequent quarrels, sum of amount of Rs.80,000/- was paid in cash to purchase the motorcycle. However, thereafter after some time when the daughter of the complainant conceived, the present applicant and mother of the present applicant (mother-in-law of the deceased Priyanka) used to force daughter of the complainant for termination of pregnancy by saying that there was no other person to do the household work.
2.3 Even some time the present applicant used to drive the daughter of the complainant out of the residence. However, once when the daughter of the complainant was driven out of the house, the complainant, who resides at Khadvai, Badlapur, Dist.Thana at Maharashtra came to Ahmedabad and took his daughter with him. Thereafter after delivery of baby boy, the in-laws accepted the daughter of the complainant on condition that she would not keep any relations with the complainant and not would even call the complainant. Considering the fact that if those conditions might bring some happiness to the daughter of the complainant, the complainant agreed to all such conditions. On 28.04.2021 he received the Page 2 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 phone-call from the present applicant who stated that daughter of the complainant was quarreling at home while he was on job and when the complainant talked to Priyanka on phone she complained that her in-laws were quarreling with her and were beating her and also complained that family members of the complainant used to ill-treat her and thereafter phone got disconnected. Considering the seriousness of the phone call, the complainant along with his wife reached to Ahmedabad on 02.05.2021 at the residence of the present applicant. On that day the daughter of the complainant told that in- laws were administering some medicines to her which makes her unconscious like state of mind and she also stated that she did not want to stay there and wanted to accompany the complainant. At that time, even the present applicant also stated that he wanted divorce from the daughter of the complainant. Ultimately at around 1:30 in the noon, the daughter of the complainant Priyanka jumped from fourth floor and committed suicide.
2.4 Pursuant to aforesaid incident, the FIR was registered against the present applicant and the applicant was arrested.
3. Heard learned advocate Mr.Dev Patel for learned advocate Mr.Neeraj Vasu for the applicant and learned Additional Public Prosecutor Mr.Himanshu Patel for the Respondent - State.
Page 3 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 4.1 Learned advocate Mr.Dev Patel for the applicant submitted that all other co-accused are released on bail by coordinate Bench of this Court and, therefore, on the ground of parity the present applicant is required to be released. He relied upon the interpretation of Section 113A of the Indian Evidence Act, 1972 ('the Act', for short) which reads as under:
"113A. Presumption as to abetment of suicide by a married woman.- When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband."
4.2 By emphasizing on word "may" learned advocate Mr.Patel stated that it is the matter of discretion of the Court and considering the facts and circumstances of the case the Court may not presume that the present applicant had abated deceased in committing the suicide. He further stated that as per Section 113B of 'the Act' there the language is such that there is mandatory provision about the dowry death that the Court would presume against husband and, therefore considering the circumstances of the case, this is fit case for exercising jurisdiction under Section 439 of the Code of Criminal Page 4 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 Procedure, 1973 ('Cr.P.C.', for short) by drawing presumption in favour of the present applicant.
4.3 Learned advocate Mr.Patel further submitted that the sensitivity varies from person to person and at the most incident can be termed as unfortunate as the deceased can be said to be highly sensitive. He submitted that domestic dispute between the husband and the wife is common phenomena of any marriage and, therefore merely because she has committed suicide, no such inference can be drawn that there was abetment in committing suicide by the husband. He further relied upon the statement made by one Sanjaysing Radhosing Brahman, who is security guard in the society wherein the victim used to reside with the present applicant and her in-laws. As per the statement of aforesaid Sanjaysing Radhosing Brahman, the deceased was suffering from depression and she was undergoing treatment for depression. Learned advocate Mr.Patel further relied upon the statements of witnesses viz. Chandni W/o. Virmalbhai Pravinbhai Bhatt, Marshik Hitendrakumar Patel and Hitendrakumar Gordhanbhai Patel, who happen to be the neighbors of the husband. Learned advocate Mr.Patel submitted that witness Chandni Virmalbhai Bhatt also stated that deceased was undergoing treatment for depression.
4.4 Learned advocate Mr.Patel also relied upon statements of witnesses Marshik Hitendrakumar Patel Page 5 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 and Hitendrakumar Gordhanbhai Patel who also stated that the deceased was suffering from depression.
4.5 Learned advocate Mr.Patel further pointed out from the papers [from Annexure:D, Page:72] i.e. the description of Psychiatric to substantiate the submission that deceased was undergoing treatment for depression.
4.6 By making above submissions, learned advocate Mr.Patel prayed for enlarging the present applicant on regular bail.
5.1 Per contra, learned Additional Public Prosecutor Mr.Himanshu K. Patel submitted that considering the allegations made against the present applicant, the Court 'may' exercise the discretion by drawing presumption against the present applicant as per Section 113A of 'the Act'. He further drew attention of the Court that as far as statements of witnesses who are neighbours viz. Chandni W/o. Virmalbhai Pravinbhai Bhatt, Marshik Hitendrakumar Patel and Hitendrakumar Gordhanbhai Patel are concerned, while giving the statement that the victim was suffering from depression, all of them have also categorically stated that deceased was being tortured by present applicant and his family members and the deceased was also driven out of the house time and again and because of such mental harassment the deceased was suffering from depression. He further stated that span of marriage of the deceased and the Page 6 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 applicant is only two and half years.
5.2 As far as the statement of Sanjaysing Radhosing Brahman is concerned, it was submitted by learned Additional Public Prosecutor Mr.Patel that he is Security Guard and what his statement is based on hearsay evidence as he has stated that he heard from people talking that the deceased was suffering from depression and, therefore, at this stage, it is the subject matter of evidence and cannot be relied upon for releasing the present applicant on regular bail.
6. No other submissions were made by either parties nor any judgment was cited.
7.1 Considering the submissions advanced by rival advocates for the respective parties, as regard the submission of learned advocate Mr.Patel for the petitioner that as per language of section 113A of 'the Act' a presumption in respect of abetment of the present applicant in respect of suicide committed by deceased wife may not be drawn. However, this Court is of the view that language of Section 113A of 'the Act' suggests that if the span of marriage is less than seven years in that case, the Court may presume about abetment of suicide by married woman having regard to all other circumstances of the case. Considering the statements of witnesses more particularly the neighbours viz. Chandni Virmalbhai Bhatt, Marshik Hitendrakumar Patel and Hitendrakumar Page 7 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 Gordhanbhai Patel as well as the complainant, all the three witnesses have, in no uncertain terms, stated that the deceased was subjected to mental harassment and torture and that there were frequent quarrels. They have also stated that time and again deceased Priyanka was driven out of the house and that mental torture had led her to depression. Therefore considering the over all circumstances, the Court deems it appropriate to draw presumption under Section 113A of 'the Act' against the husband i.e. the present applicant.
7.2 As far as the statement of witness Sanjaysing Radhosing Brahman, who is a Security Guard of the society, is concerned, he has also categorically stated in his statement about the depression that he had heard only from others.
7.3 Even as per the FIR, the complainant has categorical stated that present applicant had used to demand dowry in the name of gift for marriage and in the past also the complainant had given Rs.80,000/- to him for purchasing motorcycle. The present applicant also used to force the deceased for committing abortion and only after she delivered baby-boy, after the complainant visited the house of the deceased, she was subjected to mental torture and frequent quarrels. In fact, the intensity of such torture and quarrel was such that ultimately the complainant who was staying in Maharashtra had to rush to Ahmedabad at inlaws' house on 02.05.2021 and though Page 8 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 he was present there to console the deceased, considering the gravity of torture which she found unbearable she had to committ suicide.
7.4 This Court has also considered the fact that the age of the child of the victim and present applicant is only two years. No mother would commit suicide leaving behind her the child of age of two years and ordinarily would try to tolerate the torture, even in the interest of the child. In the instant case, in presence of the parents of the deceased who had rushed from Maharashtra and that also after the deceased committed suicide leaving behind her two years of his child it would speak volume about the amount of torture that the present applicant would be committing upon the deceased. As far as the aspect of depression of the deceased and the fact that she was undergoing treatment of depression is concerned, the present applicant has produced on record prescription to substantiate his claim that fact that deceased was suffering from depression and was undergoing treatment for it. However, the prescription produced at page nos.:72 to 74 of this application are the prescriptions of Dr.Rakesh N. Sanghadiya dated 30.04.2021 and of Dr.Saurin Upadhyay and Dr.Nipa Upadhyay of Family Care Hospital which both prescriptions are of dated 30.04.2021. The aforesaid fact would further indicate that the case of the applicant that deceased was undergoing treatment for depression since long was nothing but an act of covering up the suicide of the deceased under the Page 9 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022 R/CR.MA/21595/2021 ORDER DATED: 22/02/2022 pretext of depression and treatment of depression because the date of prescription is just of two days' before she committed suicide. The deceased committed suicide on 02.05.2021 whereas the date of prescription is 30.04.2021 which would not carry the case of the applicant any further that the deceased was undergoing treatment of depression since long.
7.5 As far as the claim of parity by the learned advocate for the applicant is concerned, this Court is of the view that the persons who are enlarged on bail by the coordinate Bench are the in-laws, whereas the present applicant being the husband of the deceased and since substantive role being attributed to the husband in the FIR as well as it has come out from the statements of witnesses, the claim of parity cannot be considered positively considering the facts and circumstances of the present case.
7. In view of above and considering overall circumstances of the case, the present application requires to be dismissed and it is dismissed accordingly. Rule is discharged.
(NIRZAR S. DESAI,J) MISHRA AMIT V. Page 10 of 10 Downloaded on : Mon Feb 28 20:28:58 IST 2022