Gujarat High Court
Ilaben Wd/O. Dipakkumar Dhanraj Shah vs State Of Gujarat on 7 October, 1992
Equivalent citations: (1993)2GLR1148
JUDGMENT M.S. Parikh, J.
1. Rule. Service of rule waived by Mr. M.A. Bukhari, learned A.P.P. for the State. Mr. R.R. Marshal, learned Advocate is permitted to make submissions on behalf of the complainant.
2. By this petition the petitioner, a woman aged about 36 years has prayed for enlarging her on bail in respect of the case registered at C.R. No. I 302 of 1992 for the offences punishable under Sections 302, 201, 120B and 114 of the Indian Penal Code for having killed or having participated in the killing of her husband-Dipakkumar Dhanraj Shah.
3. The petitioner in the first instance moved a Criminal Misc. Application No. 871 of 1992 before the Sessions Court at Surat. The learned Sessions Judge by his order dated 28-8-1992 rejected the bail application moved by the petitioner. She, therefore, approached This Court as stated above. Both the applications, namely, the application before the Sessions Court at Surat, as also before This Court, came to be filed during the pendency of the investigation and now it has been submitted by Mr. Bukhari, learned A.P.P. for the State that the charge-sheet has been submitted although some report from the Forensic Science Laboratory is yet to be received. It may also be stated at this very stage that it was almost at the expiry of the 90 days of the petitioner having been arrested, that the charge-sheet came to be submitted awaiting the report from the Forensic Science Laboratory.
4. The facts as appearing in the judgment of the learned Sessions Judge may briefly be stated for the purpose of appreciating the submissions made on behalf of the rival parties. The present petitioner was married to the deceased Dipakkumar Dhanraj Shah and was residing in one apartment in the Race Course at Surat. Both the husband and wife were running a shop in the name "Desh Pardesh" carrying on business in notified custom goods in their shop. Since both the husband and wife were working in the shop, they had employed a servant Kami by name, who was also looking after the work of cooking and other household work at home. Out of the wed-lock, the petitioner and the deceased Dipakkumar have one son and two daughters. The incident is alleged to have taken place during the night between 1st July, 1992 and 2nd July, 1992 at the aforesaid apartment house where the petitioner and her husband resided. It is the prosecution case that the present petitioner in conspiracy with the aforesaid cook Kami and two others, who happened to be connected with said Kanu committed murder of deceased Dipakkumar, packed his deadbody into a wooden box and managed to see that the wooden box was taken out of the apartment in a Maruti Van to a place near village Antroli and setting it to fire, thereby destroying the box alongwith the dead-body. This is in short the case against the present petitioner, of murder, destruction of evidence, common intention, etc.
5. The learned Sessions Judge has observed in his judgment that the evidence against the petitioner is more in the nature of circumstantial evidence. Even with regard to the allegations of the petitioner having had illicit relations with aforesaid cook Kami, there is no evidence except the evidence which is circumstantial in nature, as observed by the learned Sessions Judge. I shall presently deal with the submission regarding alleged extra-judicial confessional statements, as also the statements made by one of the accused Kalu under Section 164 of the Code of Criminal Procedure, 1973, on which Mr. R.R. Marshal, learned Advocate for the complainant has. heavily relied. It can further be seen from the judgment of the learned Sessions Judge that the villagers of Antroli found the half burnt body in the vicinity of the said village and the police recovered the same and the body was moved to the hospital for further process under the law and the body could be got identified that of deceased Dipakkumar by virtue of a statement of dentist, who used to treat deceased Dipakkumar. It has been further observed by the learned Sessions Judge that on 4-7-1992 the petitioner herself had lodged a complaint before the police that her husband Dipakkumar was missing since the morning of 2-7-1992. The learned Sessions Judge has also referred to the judicial confession made by the aforesaid co-accused, as also extra-judicial confession alleged to have been made by the petitioner before the complainant, as also before her brother. In this connection, the learned Sessions Judge has observed as under:
Thus, apart from the fact that there is no proof of her illicit tow with Kanu, the circumstantial evidence against the present applicant is over-whelmingly strong, though it is of indirect nature. Coupled with this, is her own extra-judicial confession not only before the relations of deceased Dipakkumar, but also before her own full brothers, who made statements to the effect that she confessed before them, and the confession was that, she herself, Kanu, and other friends, during the night between 1st and 2nd July, committed the murder of Dipakkumar in his bedroom, then the dead body was kept in one wooden box which was removed during the night in a Maruti Van by Kanu and others, was thrown at some place near village Antroli and was set on fire.
Thus, relying on the aforesaid set of evidence the learned Sessions Judge found that there was a prima facie case against the present petitioner for she having had the complicity in crime as per the prosecution story. He, therefore, passed the order rejecting the bail application of the petitioner while making following observations:
With overwhelming indirect evidence and the nature of the crime, I am not inclined to use the discretion vested in me, even though the applicant is a lady.
6. I have heard the learned Advocate for the petitioner as also the learned A.P.P. for the State. Mr. R.R. Marshal, learned Advocate sought permission to appear on behalf of the complainant and he was permitted to make his submissions. I have also heard him. At the out-set, it may be stated that it would not be appropriate to enter into the appreciation of the evidence, which has been pressed into service by the prosecution. However, Mr. Marshal sought to rely upon the judicial statement made by one of the co-accused Kalu, as also the statement of the liftman Lalsing Harkishan Soni and the statement of one Salim Noormahmad Solanki, a shop-keeper preparing mattresses. It appears from the police papers that co-accused Kalu has first made confessional statement before the police and thereafter he had occasion to make confessional statement under Section 164 of the Code. Mr. Marshal also placed reliance upon the extra-judicial confession appearing in the statements of the petitioner's own brothers, as also the complainant. However, several questions have been posed with regard to the confessional statements alleged to have been made by the petitioner before her own brothers, as also before the complainant. All these questions, however, could hardly be answered at this stage, even though in one of the statements of the petitioner's brother, the petitioner had at first with a vow by placing her hand over the head of her brother, stated that she knew nothing in the matter. The evidence cannot be weighed at this stage. It may be stated that the evidence in the main consists of the circumstantial evidence and if the statement of co-accused Kalu, as also the extra-judicial confessions, are excluded, there is nothing in the prosecution case to connect the petitioner with the crime. But Mr. Marshal is right in his submission that such an exercise is not to be made at this preliminary stage.
7. But then in the background of the peculiar facts and circumstances concerning the case against the present petitioner, it has to be borne in mind that the petitioner is a woman accused; she is about 36 years of age having 3 children of tender age. Mr. Jani learned Advocate for the petitioner submitted that the present case has been discussed and debated in Surat City with a wide publicity given to it, with the result that the petitioner, who is an innocent woman has been shown to be an accused-person involved in the offence resulting into murder of her husband. According to submission, it was she who first reported to the police about non-availability of her husband since the morning of 2-7-1992 and only thereafter, at a later point of time, the complainant who happens to be the brother of the deceased came out to his point a finger against the petitioner by filing the complaint in question. According to Mr. Jani, the subsequent conduct of the complainant indicates that he is after the property of the deceased, both residential as well as business premises. Besides, two of the petitioner's children have been placed in a boarding school by withdrawing one of them from the school at Surat in the midst of the academic year. The youngest daughter Niki aged about 7 years had a paralytic attack before about one and half year and she was under a continuous treatment of physiotherapy and yet she was sent to a hostel near Nargol in the State of Maharashtra. Petitioner's father Amratlal Chunilal Kapadia aged about 72 years has filed his affidavit in support of the present petition. Accordingly he belongs to a reputed family of musicians and he himself is a famous musician. The petitioner's eldest daughter aged about 13 years studying in the 8th standard in M.T. Jariwala School in Surat has been residing with him (petitioner's father). There are no criminal antecedents either of the petitioner or any member of the family. AH these circumstances concerning the present petitioner merit consideration particularly when there is a legislative sympathy in favour of women accused, as can be seen from the provision contained in Section 437(1) First proviso of the Code, which reads as under:
437. When bail may be taken in case of non-bailable offence:
(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in-charge of a Police Station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but
(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life;
(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occassions of a non-bailable and eogniza-able offence:
Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm.
8. In this connection, the learned A.P.P. for the State relied upon a decision of the Allahabad High Court in the case of Pramod Kumar v. Sadhana Rani reported in 1989 (2) Cri. LJ 1772. Dealing with the aforesaid provision the Division Bench of the Allahabad High Court held that the word "may" appearing in the first proviso would indicate that discretion is conferred upon a Magistrate dealing with the special class of persons involved in non-bailable offences punishable with death or imprisonment for life and when such discretion is to be exercised, reasons are to be recorded. The case before the Allahabad High Court was with regard to mother-in-law of the deceased charged with the offence of murdering her daughter-in-law. It appeared in the dying declaration of the deceased that her mother-in-law sprinkled kerosene oil and set her to fire. Under such circumstances it was held that she could not be enlarged on bail since there was no prima facie reason to disbelieve the dying declaration. As against this. Mr. Jani learned Advocate for the petitioner relied upon a decision contained in the case of Mr. Choki v. State . In that case a woman alongwith her husband stood charged of murdering their child and a case under Section 302 read with Section 34 of the Indian Penal Code was going on against them in the Sessions Court. She applied for grant of bail under Section 498 of the Code of Criminal Procedure, 1898. It was urged on her behalf that she got a young son outside the Jail and there was nobody to look after him. The trial of the case was likely to take very long time and the conduct of the case and the cultivation would suffer if she was not released on bail. There was nobody from the family of the accused persons outside the Jail who would look to the conduct of the proceedings at the trial. It was held that having regard to the extraordinary manner in which the offence was alleged to have been committed and the other circumstances of the case, it would not be unreasonable to allow the petition for bail and to accept heavy bail of the petitioner in order to safeguard her appearance at the trial. She was directed to be released on executing a personal bond of Rs. 5,000/- and on furnishing two sureties of like amount. The Rajasthan High Court dealt with the provision contained in Section 497(1) of the Code of Criminal Procedure, 1898, which also made a special provision for women and children. It should be noted that bride killing cases in these days form a class by themselves.
9. Mr. Jani also relied upon the decision of the Supreme Court in the case of Slate of Rajasthan v. Balchand , where His Lordship Krishna Iyer, J. speaking for the Bench observed as under:
The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the Court. It is true that the gravity of the offence involved is likely to induce the petitioner to avoid the course of justice and must weigh with the Court when considering the question of jail. So also the heinousness of the crime.
Inspite of the nature of the offence with which their Lordships of the Supreme Court were concerned in the above case, the record of the petitioner revealed that after he was released on bail there was nothing to suggest that abused the trust placed on him by the Court. His social circumstances also were not unfavourable in the sense that he being a desperate character or unsocial element who is likely to betray the confidence that the Court may place in him to turn up to take justice at the hands of the Court. He was stated to be a young man of 27 years with a family to maintain. The Supreme Court in that respect observed:
The circumstances and the social milieu do not militate against the petitioner being granted bail at this stage. At the same time any possibility of the absconsion or evasion or other abuse can be taken care of by a direction that the petitioner will report himself before the Police Station at Baran on every fortnight.
10. Mr. Jani finally relied upon two unreported decisions of This Court, where even after conviction the women convicts in their appeal came to be enlarged on bail. Following observations of the Division Bench appearing in the order dated October 20, 1982 in Criminal Appeal No. 779 of 1982 were pressed into service:
Mr. Vyas, however, urged that she has got a young daughter of about 9 years and Mr. Vyas urged that there is not a single case in which the lady accused even after conviction has not been released on bail pending hearing of the appeal. We asked Mr. Divetia, the learned Public Prosecutor to ransack the record of decided cases and he has not been able to point out any single case wherein lady accused after conviction has not been released on bail pending hearing of this appeal.
In another case being Criminal Appeal No. 803 of 1980 a Division Bench of This Court in its order dated 1/5-8-1980 considered the family circumstances of a woman convict praying for bail during the pendency of the appeal and enlarged her on bail. Mr. Jani finally relied upon some newspaper cuttings but then the same need not be stated to be considered.
11. It can be seen from the provision quoted above, as also from the Supreme Court decision in the case of State of Rajasthan V. Balchand (supra), the relevant considerations are whether a particular accused is likely to flee from the trial or jump the bail or tamper with the witnesses and so on. While bearing in mind the nature of the offence, the present petitioner being a woman accused having three children to be attended to and having father aged 72 years to be taken care of and having a social background, answers the relevant considerations which enure in favour of grant of bail.
12. Mr. Marshal, learned Advocate for the complainant has placed reliance on a decision of This Court in the case of State of Gujarat v. Lalji Popat and Ors. reported in 1988 (2) GLR 1073, where This Court had an occasion to set out main principles after considering various decisions of the Hon'ble Supreme Court. It is true that the nature of the offence and nature of case would be a relevant factor, but then that would be a factor for coming to a prima facie conclusion whether a particular accused is likely to be available at the time of trial or not. To reiterate the position and status of the petitioner as also inherent inability on the part of the petitioner being a woman accused to tamper with the prosecution evidence coupled with the facts of the present case should enure in favour of the grant of bail to the present petitioner, although by imposing certain conditions to secure her presence at the time of trial. Following order is, therefore, passed.
13. The petitioner is therefore, directed to be enlarged on bail in the sum of Rs. 10,000/- with solvent surety in the like sum on the following conditions:
(1) She shall not enter Athwa Police Station area except for the purpose of residing in her father's house, as also Umra Police Station area till the trial of the Sessions Case is completed, without the permission of the Sessions Court.
(2) She shall report to the learned Sessions Judge on every Monday between 11-00 a.m. and 12-00 noon till the commencement of the trial and thereafter she will make herself available on every day when the trial is required to be held, as also on every day as required by the learned Sessions Judge.
(3) She should not leave Slate of Gujarat without prior permission of the learned Sessions Judge and she should surrender her passport, if any.
Rule made absolute in the aforesaid terms. D.S. Permitted.