RIKHI DEV MALHOTRA Vs. SHAMAN SAREEN

JUDGEMENT

(1.) THE complainant has moved this application under Section 439, sub-section (2) of the Code of Criminal Procedure, 1973, for cancellation of anticipatory bail granted to the accused-respondents by the learned Sessions Judge, Jalandhar, vide his order dated 12-4-1990 in case FIR No. 108, dated 6-7-1989, registered for offences under Sections 302/201 of the Indian Penal Code at Police Station Nawanshahr.

(2.) THE brief resume of facts collected during the investigation of the case and relevant for the disposal of this petition is that Mst. Kamlesh Kumari was married with Shaman Sareen, accused respondent, on 5-5-1989. Prem Sagar and Smt. Sita Devi, accused-respondents Nos. 2 and 3, are parents of Shaman Sareen while Parvesh Sareen, accused-respondent No. 4, is the brother of a aforesaid Shaman Sareen, Mst. Kiran Sareen and Mst. Nita Dhir. accused respondents Nos 5 and 6, are the sisters of Shaman Sareen while Girish Dhir, accused respondent No. 7, is the husband of aforesaid Nita Dhir. In the FIR Rikhi Devi Malhotra petitioner, alleged that the aforesaid accused respondents had been harassing the deceased and demanding more dowry. The deceased wrote letters in this regard to her sister and mother. She also complained of this maltreatment to Surender Kumar of Ludhiana a day prior to this incident. According to the judicial confession of Shaman Sareen and Prem Sagar accused before Ravi Dutt witness on 5-7-1989 she was administered poison forcibly by Shaman Sareen after her parents-in-law had secured her from the arms. She was then removed to Civil Hospital, Nawanshahr. The accused represented before the Doctor that the victim had consumed chloroquine. The victim died on the next morning. Her deadbody was subjected to post-mortem examination and three ante-mortem injuries were found on her person. Her viscera and stomach wash was sent to the Chemical Examiner for analysis. The Chemical Examine found the presence of aluminium phosphide therein. This fact was recorded by the Doctor in the history sheet. This case was initially registered for offence under Section 304-B, Indian Penal Code, at the instance of the father of the victim. The learned Sessions Judge, Jalandhar, granted interim anticipatory bail to the accused respondents on 10-7-1989 and confirmed this order on 25-8-1989. The offence under Section 32, Indian Penal Code, was thereafter added. The accused-respondents then apprehending their re-arrest again approached the learned Sessions Judge, Jalandhar, for grant of anticipatory bail and the learned Sessions Judge vide order dated 12-4-1990 also granted anticipatory bail to the accused for offence under Section 302 read with Section 201, Indian Penal Code on the ground that his predecessor had granted. anticipatory bail after full application of mind to the entire evidence collected during the investigation and therefore, the previous order should be treated as halving granted not only bail for the offence under Section 304-B, Indian Penal Code, but for all the offences spelled out from the allegations of the prosecution.

(3.) IN a dowry death case of a daughter-in-law at the hands of her inlaws. grant of anticipatory bail during the pendency of the investigation is an exceptional circumstance because there is hardly any scope for direct evidence of murder in such like cases as residents of the locality are usually reluctant to come forward as witness, even if they had witnessed the occurrence, at the risk of incurring the wrath of the accused residing in that locality. Moreover, such like acts are done in a secretive manner within the four wall's of the house of the accused. Thus one cannot except/direct evidence in such like cases and has to appraise circumstantial evidence. Shaman Sareen, accused-husband of the deceased, had settled in Canada. He had sent about Rs. 39,000/- to the deceased and this fact weighed with the learned Sessions Judge in doubting the allegations of maltreatment of the deceased by her husband or his relations. The assertion of Mr. M. R. Midha, the learned counsel for the petitioner during the course of arguments, that this amount was withdrawn on the next day from the account of Mst. Kamlesh Kumari deceased had not been contradicted by the learned counsel for the accused respondents. Thus it appears to be no circumstance to conclude healthy relations between the parties in the face of letters written by the deceased to her sisters complaining that her mother-in-law and other relations of her husband used to maltreat her on account of having brought less dowry. These letters were collected during the investigation of the case and could not be said to he forged by any stretch of imagination. The statement of Surender Kumar recorded during the investigation also shows that a day prior to the occurrence, he met the deceased at her in-laws house and she complained about her maltreatment at the hands of the accused respondents. Baldev Mitter one of the witnesses stated that he was not allowed to see the victim on the eve of occurrence by the accused