Smt. Chandra Kala vs The State of Rajasthan

Inder Sen Israni, J.—This is second bail application on behalf of the petitioner-Smt. Chandra Kala, who is charged to have committed offence Under Sections 498A and 302, IPC.

Deceased-Smt. Chandra Kanta died out of burn injuries on intervening night of 4th/5th May 1990, who was married about two years back. It is submitted by Mr. K.K. Sharma, learned Counsel, that this was a case of suicide and, in fact, Ratan-brother of the husband of deceased tried to save her and in the process himself also received some burn injuries. She was rushed to E.S.I. Hospital, from where she was referred to S.M.S. Hospital. It is pointed out that in her dying declaration recorded by the Assistant Sub-Inspector of Police, she has clearly stated that Ratan & her father-in-law saved her from fire and she has no complaint against them. It is also submitted that there is note in the diary that an effort was made to bring a Judicial Magistrate to record her dying declaration, but none was available, therefore, it was recorded by the ASI. It is pointed out that a telegram was sent on 4.5.90 to parents, after she received injuries, even though, they reached on 5th May, 1990, after the funeral had taken place. It is submitted that they stayed for few days, but did not lodge any complaint. However, a complaint was lodged on 13.5.90 by Kishan Das, who is maternal uncle of the deceased Chandrakanta. It is also submitted by the learned Counsel that the second bail application has been filed after the challan has been filed in the court, therefore, the petitioner has also come to know about all the statements of witnesses recorded u/s 161, Cr.P.C. It was alleged in the FIR that ever since the marriage, demand of dowry was made and the deceased was tortured. However, it is submitted that only letter dated 1.2.89 written by the deceased to her father & mother, produced by the prosecution, does not say a word about any demand of dowry or torture. The learned Counsel has referred to statements of Rameshwar father of deceased, Kishandas-who lodged the FIR, Ramchandra elder brother of the father of deceased & Kanhaiyalal, who is a distant relation, to speak of demand of dowry. It is submitted that no reliance can be placed on their statements. It is further submitted that statemtnts of Surjeet Singh, Badrinarain, Meera Florance, Dr. Pradeep Goyal & Dr. Zian Shanker cannot be relied upon, in view of her dying declaration. These statements were recorded on 13.5.90 when the FIR was lodged on the same day, whereas, the incident took place on 4.5.90. It is also submitted by the learned Counsel that petitioner is a woman and keeping in view the proviso to Section 437, Cr.P.C, she deserves to be released on bail. Reference was made to Smt. Kitnti and Anr. v. State of Haryana 1983 (2) Crimes 530 in which, the matter came upon second bail application by two women accused for murder. It was stated that the earlier bail application was disposed of in ignorance of third dying declaration, in which names of these two women did not figure. The accused women were mothers of minor children and their children also suffered from incarceration. Both the women accused were released on bail. In Smt. Shakuntala Devi v. State of U.P. 1987 CriLJ 365 it was observed that word "may" in first proviso has been used to mean "shall" and "must". The accused woman, in this case, who was 72 years of age, was allowed bail on compassionate grounds, as the matter was still to be tried and evidence to be collected. Smt. Rameshwari Devi v. State of Rajasthan 1979 CriLR 691. was a case, in which, petitioner along with four other persons, sent for the deceased Ghisusingh and gave her beatings and on account of multiple injuries, he became unconscious and, thereafter, died. In this case, the petitioner also lodged a report to the effect that after being drunk, Ghishusingh as usual had come and gave a knife blow to the accused-petitioner who, on being examined by Doctor, was found having an injury by sharp weapon on her right hand, lower part. It was, therefore, held by this Court that in the facts & circumstances, the accused, who is a woman & her case is covered under the proviso to Section 437, Cr.P.C. and it will be proper in the interest of justice, if she is enlarged on bail.

It is submitted by Mr.M Rafique, learned Counsel for the Complainant, and Mr.K.N. Sharma, learned Public Prosecutor, that no reliance can be placed on dying declaration, which was recorded by the Assistant Sub-Inspector of Police and even a Doctor was not called to be present at that time. Mr. M. Rafique has referred to statement of Chhitarmal, Constable No. 2252, who was present at the time when the dying declaration was recorded. He has also referred to statements of Dr. Gaurishanker, Surjeet Singh, Meera Florance and Dr. Suresh Chandra Bohra, to point out that the deceased had clearly stated that she has been burnt by the accused-petitioner Smt. Chandrakala, after pouring kerosene oil on her. It is contended that there is no reason to disbelieve the statements of these independent witnesses and the Doctors, who heard shouting to this effect, soon after she was brought to E.S.I. Hospital, and also, when she was brought to S.M.S. Hospital. The learned Counsel has referred to Shahzad Hasan Khan Vs. Ishtiaq Hasan Khan and Another, in which, it has been observed that repeated bail applications be not encouraged. It is, also be, emphatically denied that this is a case of suicide, but the deceased had been burnt to death and she received nearly 90% burn injuries. It is also pointed out that the prosecution itself has disowned the dying declaration.

I have heard both the parties and also gone through the statements and the case diary. Chhitermal Constable has stated in his statement that he came to SMS Hospital along with Assistant Sub-Inspector of Police Ramdeosingh. When they reached the hospital, no Doctor was present and a Nurse was attending the deceased. When they enquired about Doctor, she stated that Doctor has gone some-where and her statement may be recorded. Thereupon, the ASI of Police Ramdeosingh asked the injured Chandra Kanta to give her statement, but she was not able to speak properly. Whatever she was speaking, was not clear. At that time, a man was standing by her side, who told that she has set herself on fire and the Assistant Sub-Inspector of Police recorded what was stated by this man. Thereafter, looking to her serious condition, they quickly left to call some Magistrate. This statement of a police constable causes a shadow on correctness/reliability of the said dying declaration, which is said to have been given by deceased Chandra Kanta. Surjeet Singh is an independent witness, who was returning from a house of his friend and when saw a crowd standing in the house of the deceased, stopped there, has stated that the deceased Chardra Kanta was shouting that her mother-in-law Smt. Chandrakala and her brother-in-law Ratan have poured Kerosene oil on her and have burnt her. The deceased, in the first instance, was brought to ESI Hospital. Meera Florance-a Nurse in this Hospital, she was shouting that her statement should be recorded that her mother-in-law had poured Kerosene oil on her and has burnt her. Another witness Dr. S.C. Bhora of E.S.I. Hospital has also sated in his statement that when deceased Chandra Kanta was brought in the hospital, she was saying that her statement should be recorded that her mother-in-law has poured Kerosene oil on her and has burnt her. He has also stated that a man, who accompanied the injured Chandra Kanta, was stating that she was speaking lie. Thereafter, she was referred to S.M.S. Hospital. When she was brought to SMS Hospital, Dr. Gaurishanker made a note on back of the bed-head ticket "Given Kerosonical burns by her mother-in-law." The statement of this Doctor has been recorded u/s 161, Cr.P.C. and he has confirmed that he did put the above-mentioned remark on the bed head ticket, as the deceased was shouting that her mother-in-law has burnt her with Kerosene oil. She was having 87% burn injuries. Witness Badrinarain, a Ward-boy of SMS Hospital, has also stated that when she was brought in the hospital, she was shouting that her mother-in-law has burnt her after pouring Kerosene oil on her.

The statements referred to above, indicate that deceased Chandra Kanta stated regarding pouring Kerosene oil on her by her mother-in-law and, thereafter, setting it on fire. Merely because the petitioner is a woman, she is not entitled to bail under proviso to Section 437, Cr.P.C, ignoring all the facts & circumstances of this case. While considering the bail application of lady petitioner, the proviso to Section 437, Cr.P.C. is kept in view and is a additional ground for granting bail to a lady accused-petitioner. The law cited by the learned Counsel for the petitioner is, evidently, of no help to her.

Without expressing any opinion on merits of the case, I am of the opinion that, in the interest of justice, the petitioner is not entitled to be released on bail. Her second bail application is, therefore, dismissed.