Shyam vs State

Budihal R.B, J.—This petition is filed by petitioner-accused u/s 439 of Criminal Procedure Code, 1973 seeking his release on bail of the alleged offence punishable u/s 302 of Indian Penal Code, 1860 in Crime No. 112 of 2012. Heard the arguments of the learned Counsel for the petitioners-accused and also the learned Government Pleader appearing for the respondent-State.

Learned Counsel for the petitioner during the course of his arguments has submitted that there are no eye-witnesses to the alleged incident. It is the case of the prosecution that deceased was having illicit connection with the petitioner. The statements of witnesses recorded by the Investigating Officer during investigation are parrot like statements. Although, they have stated that deceased was having illicit connection with the present petitioner, looking to the materials on record it shows that even the husband of the deceased also had come to her parental village and he was also present at the time of the alleged incident, which shows that the case of the prosecution is inconsistent. He has also submitted that there is two days delay in lodging the complaint. Though the alleged incident has taken place on 27-8-2012, the complaint was registered on 29-8-2012. He has also submitted that initially the case was registered for the offence u/s 307 of IPC and subsequently, she was discharged from the hospital and it is because of carelessness of the family members to take care of her health, her death has taken place. Now the investigation is completed and charge-sheet is filed. Since 14 months, petitioner is in custody. He has submitted that grant of bail is a rule and refusal is an exception, hence, by imposing reasonable conditions, petitioner may be enlarged on bail.

As against this, learned Government Pleader during the course of his arguments has submitted that before death the injured has given her statement in the hospital, which clearly shows the involvement of the present petitioner in the commission of the alleged offence. In the statement of C.Ws. 2 to 6, particularly C.W. 6, it is stated that after hearing the screaming noise when they went to the house of the petitioner, petitioner who was in the house ran away from the house. Hence, it is submitted that prosecution has placed prima facie material about the commission of the alleged offence by the present petitioner. Hence, he is not entitled to be granted with bail.

I have perused the averments made in the bail petition, FIR, complaint and also other charge-sheet material produced by the learned Counsel for the petitioner.

As per the averments made in the complaint, deceased was given in marriage to one Puttaswamy about 6 years back and out of the wedlock she has two children. She lead marital life for 3 1/2 to 4 years along with her husband. From 2-2 1/2 years since there was difference of opinion between the deceased and her husband, she came to her parental place and started to reside in the house of her parents. During that time she came in contact with the petitioner who belongs to her caste and they were having physical contact with each other. It is also the case of the prosecution that on 26-8-2012 as the mother-in-law of the deceased was not feeling well, on receiving information, she went to her in-law''s house to see her mother-in-law and on 26-8-2012 she stayed in the house of her husband and during that period herself and her husband spoke to each other and arrived at a conclusion to lead marital life together. Then she came back to her parental village to take her belongings to go to her husband''s place. At that time, petitioner asked the deceased at about 1.00 p.m. as to where she had gone the previous day, for which, she had replied that she had gone to her husband''s place and hence forth, she would lead her marital life with her husband. On hearing the same, petitioner called her to his house at about 4.00 p.m. and when she told that she will go to her husband''s place and that he should not call her, he poured kerosene oil collected in the bottle and lit fire to her. Since she was screaming, petitioner pressed her by taking one cloth. The neighbours also came there and then she was taken to the hospital since she had sustained burn injuries. It is stated that the petitioner is responsible for her death and not her husband or his family members. On, the statement of the deceased the Doctor has certified that patient is conscious, well oriented and fit to give statement. On the death of the deceased, statement given by the deceased becomes the dying declaration, which is relevant and admissible piece of evidence as per Section 32(1) of the Indian Evidence Act, 1872. Although, the learned Counsel for the petitioner has submitted that there are no eye-witnesses to the alleged incident, if the dying declaration is satisfactorily and properly established before the Court, it can be the sole basis for conviction. This is the legal position. Looking to these materials on record, I am of the opinion that prosecution has placed prima facie material to show the involvement of the present petitioner in the commission of the offence. Therefore, it is not a fit case to release the petitioner on bail.

Accordingly, petition is rejected.