Balbir Singh vs State of Punjab

K.K. Srivastava, J.—This petition moved by the complainant-Balbir Singh seeks cancellation of bail granted by Mr. M.M. Bhalla, Additional Sessions Judge, Hoshiarpur, vide order dated 17.7.95, to respondent No. 2 Ujjagar Singh, son of Sardara Singh, resident of Village Chanaur, Police Station Mukerian, District Hoshiarpur in F.I.R. No. 44 dated 16.5.95 registered u/s 304-B of the Indian Penal Code.

The deceased Smt. Balbir Kaur was married with respondent Ujjaggar Singh on 5.10.94, who was serving as a Head Constable in the Punjab Police and posted at Pathankot. Petitioner-Balbir Singh is real brother of Smt. Balbir Kaur. Smt. Balbir Kaur herself was employed as a Staff Nurse and was posted in Civil Hospital, Mukerian. Smt. Balbir Kaur, according to the prosecution allegation was being constantly harassed for brining more dowry. As a result of the harassment caused to the deceased-Smt. Balbir Kaur, she consumed three tablets of Sulphas and when her condition became serious, she was taken to the hospital where her dying declaration was recorded by Mr. Amarjit Singh, Naib Tehsildar-cum-Executive Magistrate, on 16.5.95. The doctor attending the patient-Smt. Balbir Kaur, after examining her, certified to give her statement on 16.5.95 at 4.40 p.m. Thereafter, the said Magistrate proceeded to record the statement of Mrs. Balbir Kaur which is as under :

"I, Balbir Kaur wife of Ujjagar Singh, Staff Nurse, Civil Hospital, Mukerian, resident of Randhawa Colony, Mukerian, state on oath that my husband constantly harassed me for bringing more dowry and was saying that he would take the remaining items by counting. Being fed up, I took three tablets of Sulphas. My husband will be responsible for my death personally and in-laws, mother-in-law and father-in-law are of good nature, no action should be taken against them. My dead body be handed over to my parents. RO & AC R.T.I. Balbir Kaur."

The doctor at the end of recording of the statement further certified that she remained fit and stable and mentally fully alert during recording of the statement. In her dying declaration, she stated, inter alia, that her husband will be responsible for her death personally and she exonerated her mother-in-law and father-in-law about whom she had good words and praise regarding their good nature. At the time of the occurrence, the deceased Smt. Balbir Kaur was having pregnancy of 32- 34 weeks.

The contention of the petitioner is that the learned Additional Sessions Judge committed error in law in admitting the husband-respondent-accused Ujjagar Singh to bail by attaching undue significance to the factum of pregnancy having being 32-34 weeks. It has been further contended that it was a categorical case of the prosecution that Smt. Balbir Kaur was being harassed and tortured by her husband Ujjagar Singh for the demand of dowry and u/s 304-B of the Indian Penal Code deeming presumption would be raised against the husband and, therefore, he should not have been enlarged on bail. On these grounds, it has been prayed that the bail granted by the Additional Sessions Judge to respondent No. 2 be cancelled.

Notice of the petition for cancellation of bail was issued to the respondents and respondent No. 2 put in appearance through Counsel and filed written reply to the petition.

The main contention of respondent No. 2 is that the marriage was solemnised on 5.10.94 and according to the post mortem report, the deceased wife was having pregnancy of 32-34 weeks which amply suggested that she was already pregnant prior to the date when the marriage of the deceased took place with the accused- Ujjagar Singh. It has been further contended that there is no allegation made in the F.I.R that the deceased-wife Smt. Dalbir Kdur was ever physically assaulted or harassed by respondent-accused-Ujjagar Singh immediately prior to the death. The reasons given by the learned Additional Sessions Judge while granting bail cannot be said to be wholly irrelevant and contrary to law. It has further been contended that the opinion of the autopsy Surgeon regarding the period of pregnanjay cannot be assailed as the same is based on the examination and resultant opinion of the autopsy Surgeon. The respondent-accused could not have reasonably known at the time of his marriage that his wife was already pregnant. The order granting bail has been defended as being good, valid and legal. It has also been contended that the petitioner has not misused the concession of bail.

6.1 have heard the learned Counsel for the petitioner and respondents and perused the orders passed by the learned Additional Sessions Judge, Hoshiarpur. Section 304-B of the Indian Penal Code lays down as under :

"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."

Before Section 304-B of the Indian Penal Code is made applicable, the prosecution has to initially show that:

(1) the death of the deceased-wife took place within seven years of the marriage;

(2) the deceased-wife died due to burn injuries or other injuries and unnatural death;

(3) the deceased-wife was being harassed immediately prior to the occurrence for demand of dowry.

In the instant case, the learned Sessions Judge took due notice of the fact that the post- mortem report clearly indicate that the deceased- wife had undergone 32- 34 weeks pregnancy which was suggestive of the fact that the wife was already pregnant at the time of marriage and due to shame and depression, she committed suicide by consuming tablets of Sulphas, He also took notice of the fact that there was no immediate torture or harassment for the demand of dowry. The learned Additional Sessions Judge after duly considering the material on record which included copy of the marriage card, certificate of Panchayat to the effect that the marriage took place on 5.10.94 and the report of the autopsy Surgeon that at the time of death which took place on 16.5.95, the deceased-wife had undergone pregnancy of 32-34 weeks which means between 8 and 9 months, came to the view that the provisions of Section 304-B of the Indian Penal Code were not attracted and the defence of the accused was quite probable and thus granted bail to respondent No. 2. The learned Additional Session;; Judge had the requisite jurisdiction to grant bail and he after perusing the material on record exercised his judicial discretion in admitting the accused to bail. I do not find any illegal infirmity in the order passed by the Additional Sessions Judge. Apart from it, there is no averment made in the petition by the petitioner that after the grant of bail, respondent No. 2 has in any manner misused the bail. Resultantly, the petition for cancellation of bail has no merit and deserves to be dismissed, and is dismissed accordingly.