Himachal Pradesh High Court
Pankaj Kumar vs Of on 17 February, 2017
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH
SHIMLA
.
Cr.M.P(M) No. 87 of 2017
Decided on : 17.2.2017
Pankaj Kumar .....Petitioner.
Versus
of
State of Himachal Pradesh ....Respondent.
Coram: rt
The Hon'ble Mr. Justice Sureshwar Thakur, Judge.
Whether approved for reporting?1 Yes.
For the Petitioner: Mr. Harsh Khanna, Advocate.
For the Respondent: Mr. Parmod Thakur, Additional
Advocate General with Mr. Vikram
Thakur, Mr. Puneet Rajta, Deputy
Advocate Generals and Mr. Rajat
Chauhan, Law Officer.
Sureshwar Thakur, J (oral)
The instant petition stands instituted by the bail applicant under Section 439 Cr.P.C, for his being ordered to be released from judicial custody wherein he is extantly lodged, for his allegedly committing offences punishable under Sections 1 Whether reporters of the local papers may be allowed to see the judgment?
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498-A, 306, 34 IPC recorded in F.I.R. No.106/16 of 1.11.2016, .
registered with Police Station, Barsar, District Hamirpur, H.P.
2. Deceased Jyoti Thakur contracted a marriage with the bail applicant on 10th February, 2015. She within less than a year of elapsing therefrom committed suicide by consuming poison at her matrimonial home . The post mortem report prepared by rt the doctor who subjected the body of the deceased to post mortem examination omits to enunciate qua the existence of any ante-mortem injury on the person of the deceased at the time contemporaneous to hers standing subjected to post mortem examination by the Doctor concerned, effect whereof would stand alluded hereinafter.
3. The learned Deputy Advocate General with force contends before this Court that with the deceased committing suicide within less than a year elapsing since hers contracting marriage with the bail applicant thereupon the presumption enshrined in Section 113A of the Indian Evidence Act provisions whereof stand extracted hereinafter getting squarely attracted vis-à-
vis the bail applicant whereupon he stands disentitled to claim the ::: Downloaded on - 15/04/2017 21:56:10 :::HCHP ...3...
facility of bail from this Court rather contrarily at this stage the .
prosecution has hence prima facie proved the allegations constituted in the FIR.
"113A. Presumption as to abetment of suicide by a married woman-
of 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 rt 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. For appreciating the worth of the aforesaid submission, it is imperative to bear in mind the factum of no antimortem injury standing noticed or voiced by the Doctor concerned who prepared the relevant post mortem report whereupon hence the sine-qua-non for attracting qua the bail applicant, the presumption embodied in Section 113A of the Indian Evidence Act stands un-satiated whereupon succor if any thereupon as stands espoused to be availed by the learned Deputy Advocate General, constituted in the factum of the bail applicant purportedly subjecting the deceased to physical cruelty ::: Downloaded on - 15/04/2017 21:56:10 :::HCHP ...4...
or mental cruelty, gets torpedoed. In sequel thereto the aforesaid .
submission addressed herebefore by the learned Deputy Advocate General anchored upon Section 113A of the Indian Evidence Act for disentitling the bail applicant to seek the of indulgence of bail from this Court, holds no vigor.
5. The learned Deputy Advocate General has also rt proceeded to contend qua the explanation to Section 113A of the Indian Evidence Act, expostulating therein qua the definition borne by the phrase "cruelty" occurring in the substantive portion of Section 113A of the Indian Evidence Act, holding a parlance as attributed qua it in Section 498 A of the IPC whereupon the purported ill-treatment or mal-treatment of the deceased by the accused alongwith other co-accused comprised in theirs conjointly making a demand of dowry upon her, hence constitutes prima-facie evidence of the deceased standing subjected to "mental cruelty" thereupon the aforesaid factum does ensure qua the indispensable ingredient(s) for attracting qua the bail applicant, the statutory presumption encapsulated in Section 113A of the Indian Evidence Act, dehors no evidence of ::: Downloaded on - 15/04/2017 21:56:10 :::HCHP ...5...
physical cruelty for the reasons aforestated existing on record .
hence, standing prima-facie proven whereupon the facility of bail ought to be refused qua the bail applicant.
6. The aforesaid submissions stand founded upon the of statements of two relatives of the deceased recorded under Section 161 Cr.P.C by the investigating Officer. The mother of the rt deceased in her statement recorded under Section 161 of Cr.P.C has though ascribed vis-à-vis the bail applicant, perpetration of mental cruelty upon the deceased comprised in his making demands of dowry upon her, demand whereof commenced within a month elapsing since the deceased solemnizing marriage with the bail applicant, yet in immediate spontaneity thereto, no report either with the Panchayat or before the police stood evidently not lodged by the complainant also subsequently thereto, though demands of dowry stood allegedly made upon the deceased by the bail applicant alongwith other co-accused, nonetheless, there exists no specificity with precision qua the timings of the demands dowry made by the accused upon the deceased, thereupon prima-facie an inference is mobilized qua ::: Downloaded on - 15/04/2017 21:56:10 :::HCHP ...6...
the aforesaid allegations of demand of dowry made upon the .
deceased by the accused, hence, standing on a shaky strata besides standing founded upon nebulous details qua the timings of the purported demands of dowry made upon her by the of accused whereupon prima-facie at this stage, this Court is unwilling to accept the factum of thereupon the bail applicant rt subjecting the deceased to mental cruelty, spurring from the factum of his alongwith other co-accused making demands of dowry upon her. Also thereupon the presumption embodied in Section 113A of the Indian Evidence Act is unavailable for succor to the learned Deputy Advocate General.
7. The uncle of the deceased also recorded his statement under Section 161 of the Cr.P.C before the Investigating Officer wherein he corroborates the recitals recorded by the mother of the deceased yet when his statement is perse hearsay it conspicuously emanating from apposite disclosures made to him by his Bhabi, latter whereofs' statement when remains unrecorded thereupon the statement of the uncle of the deceased does not enjoy any probative tenacity or vigor.
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8. Moreover, when at this stage no material has been .
placed on record by the prosecution demonstrating that in the event of bail being granted to the bail applicant, there being every likelihood of his fleeing from justice or tampering with of prosecution evidence, hence constrains this Court to afford the facility of bail qua the bail applicant. Accordingly, the bail rt applicant is ordered to be released on bail, subject to compliance by him with the following conditions:-:
1. That he shall furnish personal and surety bonds in the sum of Rs.50,000/- each, to the satisfaction of Chief Judicial Magistrate, Hamirpur.
2. That he shall join the investigation, as and when required by the Investigating agency.
3. That he shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to the Police.
4. That he shall not leave India without the prior permission of the Court.::: Downloaded on - 15/04/2017 21:56:10 :::HCHP
...8...
5. That he shall deposit his passport, if any, with the .
Police Station, concerned.
6. That in case of violation of any of the conditions, the bail granted to the petitioner shall be forfeited and he shall of be liable to be taken into custody.
9. Any observation made herein above shall not be rt taken as an expression of opinion on the merits of the case and the trial Court shall decide the matter uninfluenced by any observation made herein above.
Copy dasti.
17th February, 2017 ( Sureshwar Thakur ),
(priti/krt) Vacation Judge.
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