Maya Devi v. The State (Govt. of NCT of Delhi)

2 The FIR was rVgistefedon basis of■hjjst'atement made by Brijesh Yadav,brother ofthedeceasedto theExec-te|yeiMagistrate. ^

3. Learned senior advocate for the petitioners submits that deceased Deepa got married to AbhishekKaushik on 07.11.2011 as per Hindurifes and customs. It Was an intercast love marriage in which no dowry was given nor same was demanded by the applicants or any other family member, as admittedby the complainant inhis statement givento the SDM. The complainant had specifically admittedinhis stateme|it that there were ofthe deceased was arrested on 24.01.2016 and thereafter he was released on regular bail on 06.02.2016. Subsequently, a complaint was made wherein also there were no allegations ofdemand ofdowry.It was for the first time when a complaint was made to Commissioner of Police on 02.09.2015 that it was alleged that demand ofRs.lO lacs and two diamond sets was being made.Learned counsel further submits that the statement of mother,brother and sister ofthe deceased and a maid servant were recorded belatedly. Moreover, as per the statements, demand ofRs.lO lacs and two' diamond sets were made oh the occasion ofbirth ofthe child which at the mostis a customary gift.!^oreoyer,,quesft theseitems does not arise as the.complainant himself was facihg^^finahcial crisis and he approached the:.family of the applicants to help lim.lOut of love and. affection, Sh.B.K.Kaushik, father-imlaw of the deceasedlgave a sum of Rs.Slacs tothe complainantBrijesh Yadav through RTGS|Priorto that,he had also gryen a sum of&:f5^1acs,.i^^ the cousin ofcomplainant on 27.02.2013 throughRTQSYjp^^ made by the witnesses are ' afterthought. The.fetffion|-s.haye dreadyj myestrgation.They have roots rn the society. working|i,n'feacher in a Government school as such,there is no appfe'Hensron offleeing fromjustice. They are still ready and willing to join investigation as such,they be granted the benefitofanticipatory bail.

4. Initially, when the bail application was filed and transfeired to this Court,MnRajesh Mahajan,learned AdditionalStanding Counselappeared for the State, however, on the date of hearing ofthe bail application Mr.Mukesh Gupta,Advocate also appeared and placed onrecord copyof the bail application. The same was opposed by Mr.Rajesh Mahajan, Additional Standing Counsel on the ground that he was appointed by the Stateto contestthese bail applications,however,withoutgoingintothesaid controversy,sincethebailapplicationsareopposedbyboththecounsels,as such,they were advised to assisteach other.

5. Mr.Rajesh Mahajan,learned AdditionalStandingcounselsubmitsthat although FIR was initially registered under Section 498A/34IPC subsequently.Section 304B IPG was added.Forinvokingthe provisions of Section 304B IPG,it is.incumbentuponthe l^fOsecution to prove;

(i) The deceased'metiwithan unnataral death;:.

(ii) The unnatural death.-had Takem,|)lac^ within spven years of the marriage; '1.-. IT;.-. y _

(iii) Deceased was subjected-toyc^py or harassment^ on account of demand ofdowry;: ' k i y

(iv) Soon before her foeatR..; -'11164; deceased was subjected to cruelty/harassment on accountpTdpAryyy- Rv.,4- Gounsel submits-;that.:in the instant.case-'..all the four essential ingredients arethere astherelis^no'disputeThaf gotmarried with Abhishek Kaushik on 07.11.2011'arid she met an unnatural death on 07.08.2015. As regards the cruelty or harassmentto the deceased on account of dowry, although it was admitted that in the initial complaint made by Brijesh Yadav, he had stated that the in-laws never demanded dowry from his sister but in the subsequent complaint the reasons for this omission was duly explained where it was stated that Abhishek Kaushik is a practicing lawyer in Rohini court. When Deepa was taken to hospital several lawyers \7 complainant not to make a correct statement before the Executive Magistrate. Moreover,under their influence even the local police was not investigating the matter properly,therefore,complainant was compelled to make a complaintto the Commissioner ofPolice on 02.09.2015 wherein it was specifically stated thatthe deceased was being harassed for fulfillment ofdemand ofRs.lO lacs andtwo diamond sets.Reference was also madeto the status reportthatthe investigation wasthereaftertransferredto DIU/OD on 02.12.2015 and till then even the statement ofrelatives ofthe deceased were not recorded. After^the investigatiqn ^as^trmsfe^^ to DIU/OD,the investigating officer recorded the^^atemehtofiriothe^ and sister of the victim as well asKusum/nraid^^sefyM wa|seiit|othe house ofthe deceased after the/birth oft®el!fiifo^^ after tfe/cHM as well as the deceased expenses of which Merd;borne by the mother pf the deceased. Counsels submits thatin the statementsjull the witnesses have clearly stated thatthe deceased was being cOristantly/hhrassed for bringing Rs.lO lacs and two diamond sets and eyen OnfhdfiatefdTMayq^ had talked to her mother as well as sister and feitefated,,these demands. Lear^ Additional Public Prosecutor further refers&^the'stafdmbrduffi^^ brother and sister of the deceased recorded under Section f61 Cr.P.C where there are allegations ofharassment to the deceased and demand ofRs.lO lacs and two diamond sets. Mother of the deceased further alleged that her statement was not recorded by the police and SDM since on 08.08.2015 some ofthe advocates and one retired police officer kept pressurizing them. She further stated that hous[6] of tho dcccs^sod. Sho a.lso stated that deceased was being regularly tortured by her mother-in-law, sister-in-law and husband for demand of dowry. She used to describe these things to the victim's mother on her mobile. As per the status report,the analysis of CDR of deceased Deepa showsthat soon before her death she had talked to her mother and sister and the CDR- details confirms talks of Smt.Kusum with the mother of the deceased. Counsel further submits that the relatives ofthe deceased alleged that they are being threatened by the relatives of the accused persons therefore FIR No.563/15,,at police stationMaU'i^^^^^^^^ wasregistered. A complaint under SectioiCl56(3)Cr.H.C was'al|6ji^e by the complainant before the learnfed-Me^ Magistrate RohmiAnAhis regard. Due to security reasonsvifihe mothef and'brother of the depdased had shifted to Gurgaon where their statements were recorded bythe investigating,officer of - n the case aftef transfer ofinvestigation to DIU.Learned AS® further submits ^.. that during investigation,it has?been found thattwice abortibnAermination of pregnancy waS;,got,/done from Kalra Hospital Kirti l^agar, Delhi. Cash withdrawal of RsAMacs.on.^^ on 21.10.2014 as alleged to have been paid by,cash to the father-in-law and husband of the victim is found in the account Aatements of complainant. In addition to it, Rs.[2] lacs RTGS transaction on 05.07.2014 is also found in favour of victim after her marriage from the account ofthe complainant. It is further stated that the deceased had found a CD allegedly an obscene CD ofsister-in-law which was one of the cause of quarrel however the mobile phone of the victim, her computer, CD and money could not be recovered. Although the petitioners were granted interim protection but they are not cooperating in arguments among family members prior to the incident specially between the petitioners on the one side and victim on another side. As such, it is submitted that the investigation is at initial stage,the allegations are serious in nature,viscera report is yetto be received;recovery ofmobile phone of deceased,laptop,CD etc.is yettothe effected.Possibility oftampering with evidence and influencing independent witnesses cannot be ruled out m view ofthe past complaints ofthe family members ofthe deceased as such,itis submitted that the petitioners are not entitled to be granted benefit of anticipatory bail. Rehance^iivas^pjaced vs. State NCT ofDelhi Bail Appl.No.l6dl^^01|||^aM'''lfly^s/i of Delhi Bail Appl.No.l602/20U^wiiich was also a case undefRectfen 498A/304B IPG and the petitioners/were the real sister'and brother oflhus^and ofdeceased. Application dor grant of anticipatory bail was filed by ||iem which was dismissed by this Court on 05.M20h"by placing reliii^ on Samunder Singh vs.StateofRajasthatM Ors.(19§7)1 SCC466.^P waspreferred against that order whtdrwast-Hls^ dismis§dd vide order dtted 31.08.2012 by observing that while-considering such a^reqiiestfor gmitofanticipatory bail, the Court has to talceir^jinto consi"derhtidn7^h^^^ and gravity of the accusations, antecedents, possibility ofthe applicant to flee jfrom justice etc. Further, normally, the court should not exercise its discretion to grant anticipatory bail in disregard and magnitude and seriousness ofthe matter, the matter regarding unnatural death ofthe daughter-in-law at the house of her in-laws is still under investigation and the appropriate course to adopt was to allow the Magistrate concerned to deal with the same on the basis of material before the Court.

6. SamimderSingh(supra)wasan appealandthesame wasdismissed with the following observations:- "The widespread belief that,dowy deaths ^Lrthas granted --mess a.alll-^sto be w.l.Wed.«C WdTofhave exereised its Cwr bail in disregard °f "^^ndude regarding the unnatural death ofth § law was still under investigation an PP.,.l„ uwg ofthe material before the concerned magistrateto dealwiththesameonthe^as. the court at the point oftime o p ^ed anticipatory bail SubjecttothesenbservationSi.the:.aroehldamsmissed.p--

7. Reliance was also placddl^pi/a^^/'Sanivs.State Assam(2002) 10 see 277 where also the;ninitialfcomplaint was lacking m certain particulars regarding demand7pf.dp^ and it was si^mitted that the evidence ofdemand.forjdowrymouldhtotbcM ^iall.Repelling the contention, Hon'ble'Supreme Court observd&hdi^'Jraman nature is very complex.Different persons:react:4iff^erhiy:mh<ief>ressur or in times of sudden bereavement or grinh^ddie-shock suffered by a parent having,seen his daughter dead in an unnatural manner can in some cases prevent immediate outpouring ofreasons.Each case would have to be tested on its ownfacts and no hard and fastrule can belaid down inthis behalf.

8. Mr.Mukesh Gupta, learned Special Public Prosecutor supported the submissions oflevied Additional Standing Counsel and opposed the bail made to the conduct of the petitioners for submitting that due to threats administered by the relatives ofthe petitioners, mother ofthe deceased was compelled to shift to Gurgaon.

9. Learned Senior advocate for the complainant adopted the arguments raised by learned Additional Standing Counsel as well as learned Special Public Prosecutor for the State. In addition, it was submitted that at the initial juncture a wrong information was given to the mother of the deceased by Abhishek Kaushik, husband of the deceased by stating that Deepa has suffered a heaff'attacl%WhemrhQth^ ofthe deceased informed him thatshe is comingfofthe house then she w^ she is being taken to Bhagwati.Hospital. When the mother bffthe'deceased alongwith younger brothervand other relatives reached the hospM,they noticed some spots on the throat ofDeepa. On enquiry Abhishek Kaushik informed that she has committed suicide.It wqsfurthersubmitted that du|to the influence exerted by some advocates,ffnehds ofAbhishek Kaushikfthe complainant could not give the/coi^^letfe narration of facts before the Executive Magistrate^Undbrftheir pressure.'E^ven the local police did not investigated the matter,properly. It was only,after the investigation was transferred to DIU that the statement of some of the relatives and an independent witness was recorded which reflects the circumstances under which the unfortunate incident has taken place within four and a halfyears of her marriage. Reliance was placed on Samunder Singh vs. State of Rajasthan (1987) 1 SCC 466; State vs. Jaspal Singh Gill(1984)3 SCO 555, Gajanand A-garwui vs. State ofOrissa 2007(14) SCC 537; Central vs. State ofMaharashtra 1995 CRLJ 2782 and Sanjay Bahl vs. State of U.P. 1995 Crl.J 1658.

10. Rebutting the submissions oflearned counsels for the complainant as well as the learned Public Prosecutor for the State, learned senior advocate for the petitioners submits that the mother ofthe deceased had shifted to Gurgaon because they were allotted a flat by Haryana Urban Development Authority in the year 1987 and after the house was constructed they shifted to this house and not because ofany threat, as alleged by them. Moreover, in order to bring the case within the ingredient of"soon before death" as required under Section304B IPG,the alleged demand ofRs.10lacs and two diamond jewellery^ was set up on the occasionfof Birth of son of the deceased who was bom in January and the customary.to took place in March,2015 butthe alleged demandds-ybeing stretched to August,2015. ^ 11. Ihavecarefullyconsideredthe.tomissionsmadebyJeamedcounsels for the parties.,;y 5;

12. Neediestto say^fhe;alleg^ibnsgleveM petitioners are serious in nature. dealing with apphcatibmfqf grant of anticipatory bail, among other circumstahces,-the following factors have also to be considered before granting bair,ihey are: i) The nature of accusations and the severity of punishment in case of conviction and nature ofsupporting evidence; ii) Reasonable apprehension of tampering with the witness or apprehension ofthreatto the complainant; iii) Prima facie satisfaction ofthe Courtin supportofthe charge. Brijesh Yadav,brother ofthe deceased,to the Executive Magistrate it was alleged that there was no demand of dowry, however, the subsequent complaints made by him reflect the circumstances under which such a statement was made before the Executive Magistrate. Moreover,the local police had not even recorded the statement ofthe near and close relatives of the deceased. It was only subsequently a complaint was made by Brijesh Yadav for inaction on the part of the police and,subsequently another complaint was made stating therein that the deceased was subjected to harassment on account ofConstant demand ofRs.lO lacs and two diamond jewellery sets. It was Only"after the investigation'was transferred to DIU that the statement/of" motherEiahbthdr/brother,/sister-m maid of the deceased were recorded which unfolded the demand;ofRs.lO lacs and two diamond sets.Allthis materihlYblldet^jduring investigation willbe subject to scrutiny atthe trial,by the Sessions-Judge atthe appropriate stage. As per the status report, there was soms-•money transaction n which reflected payment of Rs.4- lacs/j/YhdcsfanE/v-JA whereas accordingto petitioners/asum.ofRs.[5] lac ahd-fSlac was given by father-inlaw of deceased'to her'■bfdth»:an#wdusiM these transactions are required to be investigated. Moreover, although the petitioners have joined investigation pursuant to the interim protection granted to them however it is alleged that they are not cooperating with the investigation. The CD alleged to be contkining obscene pictures of Preeti, video clip, mobile and laptop of the deceased etc. are yet to be recovered. Despite the fact that ' Abhishek Kaushik was arrested and his police custody remand was taken I: which resulted in registration ofFIR No. 563/2015 under Section 506 IPG; at police station Maurya Enclave and it is alleged that because ofsecurity - reason, the complainEint and his family members were compelled to shift; I Gurgaon. At the stage of bail, the Court is not to threadbare analyse the; ! evidence furnished by the prosecution.That exercise will only be done after; i the witnesses have been examined in the trial court.;: 14. For the reasons mentioned above and since the case is still at the i n threshold,I do not think that it is a case where benefit of anticipatory bail I 1 deserves to be extendpftdbfthe petitioners,.Adbordingly,the applications are i dismissed.The interim^pfotdctibn.grantedt^Ihf^'petftipners vide order dated 17.02.2016 an(Tbxtended thereafterstands:yacateS/T' ''iy

15. It is clafifie.dfthat'expression ofany opinion niapn^be treated as an ' expression on merits ofthe case. ^ '-1 I n fill! S (SUNITAdUPTA) 'NT* judge 19,2016 n APRIL mb.