Ajit Singh vs State of Punjab and Another

V.K. Bali, J.—In these two connected petitions bearing Criminal Misc. No 17050-M of 1994 and Criminal Misc. No 154-M of 1995, the question to be determined is as to whether the two respondents herein i.e. sister in law and mother in law of the deceased Jasbir Kaur who were granted anticipatory and regular bail respectively should carry on enjoying the concession of bail granted to them or the same on the facts and circumstances of this case should be cancelled.

Jasbir Kaur a married lady of 22 years having two living infant female children aged 1 1/2 years and nine mouths and one more to arrive as she had five months pregnancy breathed her last on 5th of September, 1994. She was married to Jagdev Singh on 30th of December 1991, and, thus her married life span was of a duration of slightly over 3 1/2 years. During all this time, as per dying declaration of Jasbir Kaur, she was tortured at the hands of her mother in law aged about 55 years and her spinster sister in law aged about 28 years. The dying declaration on the basis of which an F.I.R. came to be registered against the respondents runs thus:-

"Statement of Jasbir Kaur wife of Jagdev Singh cast Jhewar, resident of village Kunran, police station sadar sangur and aged about 22 years. Stated that I am the resident of village Bassion Police Station Raikot, District Ldhiana, My father Ajit Singh who retired from the Military, We are one brother Avtar Singh she is 4 years older the me. I am younger to him. My marriage is solemnised on 30th December, 1991 with Jagdsev Singh son of Bachan Singh resident of village Kunran Police Station Sadar Sangrur. I have two daughters. The elder daughter is kamaljit whose age is 1 1/2 years and younger to her is Rajni whose age is 9 months. My husband and my father in law Bachan Singh are doing the work of agriculture and a Flour Mill (Atta chakki) is installed in the house and we are doing the work of grinding Atta also. My mother in law Mohinder Kaur wife of Bachan Singh and Nanad sister in law Jaswinder Kaur always harass me and are taunting me that you have brought less downy. You bring more dowry and money. Now it is about 1 1/2 years when Kamaljit was born, then on the asking of my mother in law Mohinder Kaur and Nanad Jaswinder Kaur who is unmarried brought Rs. 4000/- on loan from my father Ajit Singh. Whenever I asked for return their money, then at that very time both of them, mother in law Mohinder Kaur and Nanad Jaswinder Kaur assaulted me and beat me. On 11-9-1994 my husband Jagdev Singh had gone to the fields to bring fodder fort the catties, and my father in law Bachan Singh had gone to Beas Dera. My mother in law Mohinder Kaur and Nand Jaswinder Kaur who were in the house told me that now you go and bring Rs. 5000/- from your father and bring more ornaments also. I said that he is a poorman so he cannot give so much money and jewellery. You return his Rs. 4000/- (Rupees pour Thousand) already taken. On my saying this my Nand Jaswinder Kaur poured kerosene oil on my clothes and on my body and my mother in law Mohinder Kaur set me on fire. I raised noise of ''Bachao Bachao'' loudly. Fortunately my husbad Jagdev Singh reached carrying the fodder. Who extinguished the fire which was set on my clothes and first of all took me to the hospital at Sangrur. After getting me medicines from there, then I was got admitted in the C.M.C. where I am under treatment. My husband Jagdev Singh is in my favour. He neverquarreled with me. When I was crying with the plain, then my mother in law mohinder Kaur and Nanad were saying that now you have a taste of demanding the return of the amount of Rs. 4000/- Both of them had set me on fire with the intention of killing me Statement is heard. It is correct.

S/d- Jasbir Kaur."

Whereas, Mohinder Kaur, mother-in-law applied for regular bail, her daughter Jaswinder Kaur applied for anticipatory bail before the learned Additional, Sessions Judge, Sangrur, Shri J. S. Korey and vide one order the matter of both was dealt with on October 26, l994. Whereas, the sister-in-law of the deceased was allowed anticipatory bail, mother-in-law of the deceased was declined regular bail. It is against that part of the order allowing anticipatory bail that Crl. Misc. No. 17050-M of 1994 has been filed asking for cancellation of bail

During the pendency of this petition before this Court, the learned Addl. Sessions Judge granted regular bail to the mother-in-law on 16th of December, 1994, giving rise to the connected Crl.Misc.No. 154-M of 1995 praying for cancelling the bail granted to mother-in-law. Both the matters are connected and are, thus, being disposed of by one order.

Before, however, the contentions of learned counsel appearing for the parties far and against the cancellation of bail are noticed, it shall be useful to state salient features of the case as also the grounds on which the trial Judge granted anticipatory bail to sister-in-law and regular bail to mother-in-law.

The statement of the husband of the deceased was recorded u/s 161 of the Code of Criminal Procedure on 15th September, 1994 itself. His statement was read in this Court and that concededly involved both respondents in the commission of crime. By the time, therefore, the first application came up for hearing before the trial Judge, the statement of the husband of the deceased u/s 161 of the Code of Criminal Procedure before the police was available. The medico-legal report showing that the deceased died on account of burn injuries was before the Additional Sessions Judge as also the dying declaration. The opinion of the doctor was given on the asking of the Investigating Officer that the injured Jasbir Kaur who later died was unable to make any statement up to 14th September, 1994. The trial Judge was also appraised of the latest law on the point that unless there was compelling reasons, anticipatory bail should not be allowed in a dowry death case. This case law has been specifically referred to in the order granting bail itself. In the dying declaration there is not a remote whisper against the husband and the father-in-law. In fact, it is clearly stated in the dying declaration that the husband was always on the side of the wife.

Now the reasons that prevailed with the trial Judge in granting anticipatory bail to the sister-in-law and regular bail to the mother-in-law need necessary mention. After leaving it open to the parties to lead evidence on the issue as to whether it was a case of accidental fire on account of bursting of a stove or the deceased was actually put on fire by these two ladies, the trial Judge concluded the matter by simply observing that the deceased had left two female infants aged l 1/2 years and 9 months and except the accused-applicant i.e. sister-in-law, there is no other lady in the house of the accused to look after the minor children and since this contention of the counsel of the respondents herein could not be rebutted by the prosecution, the anticipatory bail was granted. Besides that it was also observed that no evidence has been collected so far against the accused except the statement of the deceased, despite the fact that case was registered on 15th September, 1994. These are the only two reasons on which the trial Judge thought it a fit caas where sister-in-law should be granted concession of anticipatory bail.

While dealing with the case of Mohinder Kaur mother-in-law vide order dated 16th December, 1994, it was observed that Jagdev Singh had given affidavit which was placed on the record of the case affirming that on 11th September, 1994 the deceased was boiling the milk and due to bursting of the stove, clothes of his wife caught fire and he was present at the time of occurrence and he extinguished the fire with the help of his mother. It is also mentioned in the said affidavit that mother-in-law of the deceased had sent her to the Civil Hospital for medical treatment and he also got burns on his hands while extinguishing the fire and his sister and mother were not involved in the death of his wife in any manner. The other fact which impressed the trial Judge in granting bail to the mother-in-law was that she was a female.

The learned counsel appearing for the petitioner vehemently contends that in a case of this kind which shows a gruesome murder of a married woman within seven years of her marriage (in the present case about 3 1/2 years) there was no question for the trial Judge to have granted anticipatory bail to the sister-in-law and regular bail to mother-in-law who were directly involved by the deceased when alive who had given her dying declaration. It is further argued that the learned trial Judge was not right while observing that the prosecution had collected no evidence but for the statement of the deceased in the form of dying declaration as also that the opinion of the doctor that the lady was unfit to make the statement right from the date she was admitted in the hospital i.e. till 14-9-1994 was totally ignored, thus, resulting into apparent miscarriage of justice.

Mr. R. K. Battas, learned counsel appearing for the respondents, however, joins issues with the counsel for the petitioner and contends that it is a case of two ladies who have been granted bail by a well considered order passed by the trial Judge and inasmuch as there are no allegations that they are misusing the concession of bail by tampering the prosecution evidence, the bail granted to them should not be cancelled. It is also being argued that Jagdev Singh the husband of the deceased had given an affidavit by clearly stating therein that his mother and sister were not at all involved in the matter and it is only on account of bursting of stove that his wife died.

I have heard the learned counsel for the parties at great length and considered the grounds on which the learned trial Judge proceeded to grant bail to both the respondents. I am of the considered view that the bail granted to both should be cancelled. The dying declaration reproduced above clearly makes out a case of continuous torture of Jasbir Kaur at the hands of the respondents mother-in-law and sister-in-law. The statement made by Jasbir Kaur directly involves Mohinder Kaur and Jaswinder Kaur; one by pouring kerosene on her and the other showing match stick. It is true that the occurrence took place on 11th September, 1994 and the dying declaration came to be recorded on 15th September, 1994, but as mentioned above, the doctor opined that right from 11th to 14th September, 1994, Jasbir Kaur on account of her burn injuries that she had sustained was unable to make any statement. It is on 14th September, 1994 that she made statement and died on 15th September, 1994. On that date the statements of the deceased''s brother and her brother were recorded and yet, perhaps having not been properly informed, the trial Judge recorded a finding while deciding the application for bail that the prosecution had not recorded any statement but for the dying declaration of Jasbir Kaur. No attempt at all was made in this case to find out from the family of the deceased as to whether there was any female available to look after the minor female daughters and it is only by observing that the prosecution was unable to deny that there was no other representative who could look after the minor children the matter was concluded. It is admitted position that challan has been put up u/s 302, I.P.C. Insofar as affidavit of husband of the deceased is concerned, the same came on the records of the case when the application of mother-in-law of the deceased for regular bail was being considered i.e. much after the occurrence. In considered view of the Court far from helping the accused, the affidavit shows a complete sumrner-sault by the husband from his earlier statement made u/s 161 of the Code of Criminal Procedure. The same goes against the respondent inasmuch sa it clearly reveals an attempt on the part of the respondents to win over the witnesses.

The apex Court in Union of India (UOI) and Others Vs. Arun Kumar Roy, held that "when the matter regarding unnatural death of daughter-in-law in her father-in-law''s-house was under investigation, it was not prudent for the High Court to grant anticipatory bail." The short order in Samunder Singh''s case (supra) reads thus:-

"The widespread belief that the dowry deaths are even now treated with some casualness at all levels, seems to be well grounded. The High Court has granted anticipatory bail in such a matter. We are of the opinion that the High Court should not have exercised its jurisdiction to release the accused on anticipatory bail in this regard of the magnitude and seriousness of the matter. The matter regarding the unnatural death of daugter-in-law at the house of her father-in-law was still under investigation and the appropriate course to adopt was to allow the concerned Magistrate to deal with the same on the basis of the material before the Court at the point of their arrest in case they were arrested. It was neither prudent nor proper for the High Court to have granted anticipatory bail which order was very likely to occasion prejudice by its very nature and timing. We, therefore, consider it essential to sound a serious note of caution for future. The High Court is under no compulsion to exercise its jurisdiction to grant anticipatory bail in a matter of this nature. Sofar as the present matter is concerned, since it has become infructuous, we do not propose to pass any order. Subject to these observations the appeal is dismissed.

This Court in Harbinger Singh v. Puran Singh 1993 (2) RCR 546, held that "there should be some very compelling circumstance for grant of anticipatory bail in a murder case". The well settled law that while granting anticipatory bail in serious matters which might occasion prejudice by its very nature and timing, was ignored in this case resulting into apparent mis-carriage of justice. It may be recalled that bail to both, sister-in-law and mother-in-law of the deceased, was granted at the time when the investigation was still in progress.

Mr. Battas, learned counsel representing the respondents, however, cites a judgment of the Andhra Pradesh High Court in Lingaiah Vs. State of Andhra Pradesh, and a judgment of the apex Court in Dalip Singh and Others Vs. State of Punjab, , to contend that in the absence of direct evidence, the allegations that the accused caused death of the wife by setting her on fire and that the dying declaration recorded by the Executive Magistrate without finding out mental condition of the deceased and when there were material discrepancies regarding the circumstances available before setting the deceased on fire, would be unreasonable as also that even though the dying declaration recorded by police officer during the course of investigation is admissible u/s 32 of the Evidence Act but it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the Court as to why it was not recorded by a Magistrate or by a doctor. It requires to be mentioned here that dying declaration in this case was recorded by a police officer. In considered view of this Court these matters can be better appreciated after the parties lead evidence and it is too premature a stage to make any comment on the submissions of the learned counsel, noted above.

Mr. Battas also cited adjudgment of this Court in Mohri Devi v. State of Haryana 1987 Cri LR 395 wherein mother-in-law and sister-in-law of the deceased, both being females, were held entitled to the concession of anticipatory bail u/s 438, Cr.P.C. All that requires to be mentioned here is that while dealing with the bail matter the Court is always influenced for grant or refusal of the bail on the peculiar facts of each case. However, it may be noted that the case cited above pertained to a death of a girl, who committed suicide and both, mother-in-law and sister-in-law were residing with respective husbands at Delhi and Bikaner.

While concluding his arguments, Mr. Battas has stressed that once bail has been granted, whether rightly or wrongly, the same should not be cancelled unless there are allegations of tamporing with the prosecution evidence or intimidating the eye-witnesses. For his aforestated contention, learned counsel has relied upon Ashok Kumar v. Yadav Rai 1991 (3) RCR 71. This contention of the learned counsel shall, however, not come to the rescue of the respondents as in the present case it is demonstrated that Jagdev Singh, husband of the deceased had made a summer - sault from his statement that he gave before the police. It requires to be mentioned tht in the statement u/s 161, Cr.P.C. as also in dying declaration it is mentioned that he had gone to have fodder from the fields when his wife was burnt. In his affidavit, however, it is stated that the deceased caught fire on account of bursting of stove when she was boiling milk. It shall not be safe to make further comments on this affidavit as the same would obviously prejudice either of the parties at the time of trial and suffice it, however, to say that it is not a case where attempt to win over the witnesses is not being made.

For the reasons recorded above, bail granted to mother-in-law, Mohinder Kaur and sister-in-law Jaswinder Kaur is cancelled. However, it is made clear that nothing said in this order shall be construed as an expression of opinion and the trial Judge would decide the matter being totally uninfluenced of what has been said in this order.