Full Text
HIGH COURT OF DELHI
JUDGMENT
Additional Documents) & CRL.M.A. 26103/2022 (for placing additional documents on record)
NADEEM CHAUDHARY ..... Applicant
For the Applicant: Mr. Shreeyash U. Lalit, Mr. Vimal Tyagi & Mr. Anil Dalal, Advocates
For the Respondent: Ms. Richa Dhawan, APP for the State with SI Amit Solanki, PS Sunlight
Colony.
1. The present application for grant of regular bail under Section 439 of the Code of Criminal Procedure, 1973 (CrPC) is filed in FIR No. 293/2020, under Sections 498A/304B/34 of the Indian Penal Code, 1860 (IPC), registered at Police Station Sunlight Colony.
2. The FIR was registered on a complaint made by Shri Sagir Ahmed, alleging that the Applicant, Nadeem Chowdhary was married to his daughter, deceased Shehzadi @Chand, who committed suicide on the intervening night of 05.09.2020- 06.09.2020, due to harassment and torture, being caused by her husband (the present applicant), and his family members.
3. It is alleged that the family of the complainant was under pressure even before the marriage took place. The family members of the accused even before the marriage started demanding a car, an expensive watch and a lavish marriage, at which around 4000 people were to be catered. The marriage between the appellant and the deceased took place on 22.12.2017.
4. It is alleged that the deceased was subjected to cruelty and was beaten on a regular basis, the reason stated for the same was that she did not bring enough dowry as demanded by the family of the applicant. The complainant once received a call from the deceased informing about a fight and that she was being brutally beaten. The complainant on reaching the house of the accused was told not to come again as this was the internal matter of the family and thereafter the accused also broke the mobile phone of the deceased which was used to call the complainant and the other family members.
5. On the day of the incident, that is, 05.09.2020, at around 1:00 P.M., the deceased had called her mother from her own sim card using the phone instrument of her neighbor and told her that the accused is having some extra-marital affair and she saw a video of them in his mobile phone because of which she was being beaten by the accused and was also threatened to be killed.
6. Thereafter on the same night at around 1:00 A.M. the complainant had received 3-4 missed calls and when he picked the call he was informed about the death of her daughter and was told “Chand aab nahi rahi” and that she had committed suicide by hanging herself with the fan. Upon reaching the house of the accused the complainant alleged that his wife and son namely Sanam did not see any sign of her committing suicide as the bedsheet on the bed of the room was completely fine and no dupatta was seen nor did they find anything that she could have used to hang herself. No stool/table which she could have used to reach the fan was found and the police was also not present at the place of the incident. The complainant’s wife and son were told upon reaching the matrimonial home of their daughter that the deceased was taken to Jeevan Hospital, and when they reached there, they were informed that she was declared brought dead. After sometime the complainant also reached Delhi and after being told about the said incident he gave his complaint which later culminated into the present FIR.
7. The post mortem was conducted and it reported as under: Opinion- No external injury other than ligature mark was present over body. Thyrohyoid complex was Intact. No poison was detected in viscera of deceased. In view of all this fact, am of the opinion that cause of death in this case, asphyxia due to compression by ligature in case of antemortem hanging which is invariably suicidal in nature.
8. The matter was adjourned on the last date of hearing giving liberty to the applicant to press for hearing after the examination of PW-19, the complainant. It is stated that the complainant PW-19 has already been examined.
9. Learned counsel for the applicant submits that the applicant has been falsely implicated in the present case. He further submits that the unsubstantiated allegations of demand of dowry in the present case were made against the entire family of the applicant and the father has already been granted bail by the Court of Sessions by order dated 15.01.2021. The vague allegations had been made at the time of registration of the FIR against the entire family. He further submits that there is no allegation that any demand for dowry was made soon before the death of the victim.
10. The applicant is in custody since 07.09.2020. The chargesheet has already been filed and the complainant has already been examined. It is submitted that there are no chances that the applicant will not cooperate in the pending trial or that he will flee the country. Further, there are no chances of any tampering with the evidence at this stage.
11. Learned APP for the State has opposed the grant of bail. She reiterates the allegations made against the applicant which are made part of the chargesheet. She submits that the applicant and the other accused persons have admitted to their involvement in the crime during the disclosure statements. She further submits that the complainant has specifically stated that after the marriage, the in-laws of deceased had started harassing her in relation to demand of dowry. The deceased on the day of incident had called her mother and informed her that the applicant was having an extra marital affair and when the deceased confronted the applicant, she was brutally beaten. The call data record of the deceased shows that she had in fact made a phone call to her mother on the day of incident. Conclusion
12. It is significant to note that the allegations of the alleged demand of dowry were made not only against the applicant but against the entire family of the applicant. Chargesheet in the present case has been filed for offences punishable under Section 498A/304B/34 IPC.
13. The offences alleged against the accused persons presupposes the cruelty and the demand of dowry as the reason for such cruelty. Further, in terms of Section 304B IPC, in order to attract the presumption, it should be shown that soon before her death, the victim was subjected to cruelty or harassment in connection with any demand of dowry.
14. Section 304B of IPC states as under: [304-B. Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry, such death shall be called “dowry death”, and such husband or relative shall be deemed to have caused her death. Explanation.—For the purposes of this sub-section, “dowry” shall have the same meaning as in Section 2 of the Dowry Prohibition Act, 1961 (28 of 1961). (2) Whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for life.]
15. The allegations with regard to the demand of dowry have been alleged at the time when the marriage took place. The allegations for the subsequent dates at this stage appears vague.
16. From the perusal of statements recorded, and the allegations made; at this stage, it does not appear that the victim was subjected to cruelty soon before her death in relation to any demand for dowry. The allegations of alleged demand of dowry have been made for previous period.
17. It is alleged that on the day of incident, the victim had called and mentioned that the applicant was having extra marital affairs and on being confronted, he had beaten the victim. It is not alleged that the victim had called prior to her death and complained about the cruelty for the reasons of demand of dowry.
18. Whether the victim was subjected to cruelty soon before her death in connection with any demand of dowry so as to attract the presumption as provided in Section 304B IPC, would be a subject matter of trial and cannot be presumed at this stage.
19. The presumption in law of a ‘dowry death’ is meant to act as a deterrent to the demand of dowry and to ensure that there is no victimization because of that. The allegations levelled will be tested in trial and at this stage while considering the Application for Bail only the parameters enshrined in that regard are to be considered.
20. In Savita v. State of Delhi, (2019) 10 SCC 29, where the allegations were made under Sections 498-A and 304 of the Indian Penal Code, 1860, since the accused had already been in jail for 27 months out of a total sentence of 10 years’ rigorous imprisonment, the Supreme Court thought it fit to grant bail. In Yashpal v. State (Govt. NCT of Delhi) [Bail Application No.1340/2019, decided on 29th May, 2019], a learned Single Judge of this Court, considering that the details of dowry were not given to the investigating officer and the fact that the trial was likely to take some time, granted regular bail to the accused.
21. The father of the applicant, against whom the same allegations have been made, has already been granted bail by the learned Sessions Judge.
22. The applicant is in judicial custody since 07.09.2020, the chargesheet has already been filed and the case is pending at the stage of prosecution evidence.
23. At this stage, when the applicant has already spent more than 2 years and 5 months in judicial custody, the investigation is already complete and the charge sheet has already been filed, there can be no apprehension of the accused absconding or fleeing or tampering with evidence if released on bail. Moreover, the same can also be taken care of by putting appropriate conditions. No apprehension has been raised about the witnesses being influenced.
24. The object of Jail is to secure the appearance of the accused persons during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a punishment. The applicant cannot be made to spend the entire period of trial in custody specially when the trial is likely to take considerable time. The presence of the accused can be secured at the time of trial by putting appropriate conditions.
25. Without commenting further on the merits of the case and keeping the above facts and circumstances in mind and the fact that the trial is likely to take some time, I am satisfied that the applicant has made out a case for grant of regular bail.
26. The applicant is, therefore, directed to be released on bail on furnishing a bail bond for a sum of ₹1,00,000/- (rupees One Lakh only) with one surety of the like amount to the satisfaction of learned Trial Court / Duty Metropolitan Magistrate on the following conditions: a. The applicant shall under no circumstance leave Delhi without informing the concerned IO; b. The applicant shall not take unwarranted adjournment before the Trial Court; c. The applicant shall not, in any manner, try to contact any of the witnesses; d. The applicant shall provide his mobile number to the concerned investigating officer (IO)/ SHO at the time of release which shall be kept in working conditions at all times.
27. In the event if the applicant is found to be violating any of the conditions, it would be open to the State to seek redressal by filing appropriate application for cancellation of bail.
28. It is also made clear that the observations made in the present case are only for the purpose of considering the bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.
29. The present application is allowed in the aforesaid terms. AMIT MAHAJAN, J MARCH 3, 2023 SK/ HK