Point of Law : Criminal Law - Offence of Cruelty and Dowry Death - Bail Application - No previous complaint against accused and co-accused are on bail, and the fact that applicant is in custody for almost five years, therefore, without commenting on merits of case, court opinion that accused is entitled to bail

ORDER :

1. The applicant seeks grant of bail in case FIR No. 27/2016 which is pending trial before the Court of learned Additional Sessions Judge, Kathua.

2. The facts of the case are that the grandfather of the deceased lodged a report with the police that the victim had committed a suicide in the house of her husband in Ward No. 13, Hiranagar by hanging herself with a dupptta and consequently, FIR No. 27/2016 was registered under Sections 304-B, 306, 498-A RPC in the Police Station, Hiranagar on 22.03.2016 and the applicant, who was employed in the Army, was arrested on 17.05.2016.

3. The trial Court vide its order dated 11.06.2016, passed in bail application filed by the accused persons admitted three other co-accused namely Narinder Singh, Neena Kumari and Kuldeep Singh to bail but but denied the same to the petitioner.

4. The applicant thereafter approached this Court for grant of bail vide B.A. No. 144/2017 but the same was dismissed vide order dated 21.11.2017 granting liberty to the applicant to apply afresh before the trial Court after the evidence of material witnesses.

5. After recording of evidence of Thoru Ram-grandfather, Nisha Sharma-mother and Amit Sharma-brother of the deceased, the applicant approached the Court of learned Sessions Judge, Kathua for grant of bail but said application was dismissed vide order dated 08.08.2020.

6. The applicant, who was in the Army, is in custody since 17.05.2017. The minimum punishment provided under Section 304-B RPC is seven years but it could be extended upto life imprisonment. Offences under Section 498-A RPC is punishable only upto three years and punishment prescribed under Section 306 RPC is upto 10 years. Thus, it is only punishment prescribed under Section 304-B of the Penal Code due to which the bail could be denied. As per the post mortem finding, the cause of death is “Cardio Pulmonary arrest due to Asphysia because of hanging”. The post mortem was conducted by two doctors.

7. Admitted facts are that the marriage of the deceased-Radha Sharma was solemnized with the applicant on 07.03.2014. The deceased lived with her husband for few months and as per statements of her brother and mother, she was staying with her parents. It is also admitted that the applicant had filed an application for restitution of conjugal rights under Section 9 of the Hindu Marriage Act on 23.02.2015 and subsequently, a petition under Section 13 of Hindu Marriage Act was filed and is pending before the Court of District Judge, Kathua.

8. It is also admitted that on 15.03.2016, the deceased had gone to attend the Court hearing in Kathua accompanied by her grandfather-Thoru Ram and the Presiding Officer had suggested to compromise with each other. In the evening of the same day, Rohit Singh came with his mother and brother-Narinder Singh and uncle whereafter she left with them as she wanted to accompany Rohit Singh, and all of them left together. It is not for this Court to comment on the evidence of Nisha Sharma at this stage.

9. Learned counsel for the respondents has opposed the prayer of bail with the submission that in view of the gravity of allegations, the applicant does not deserve to be enlarged on bail.

10. Be that as it may, the cause of death is hanging. The First Information Report also reflects the same.

11. The circumstances of the case are such, the further custody of the accused will be punitive because there is evidence that the deceased had closed the door from inside as stated by PW-Kartar Chand in the statement recorded by the Police. What happened preceding the occurrence is also stated by Bharti Sharma in her statement under Section 161 Cr.P.C. Statements of Pw-Kartar Chand, Pw-Jyoti and others are yet to be recorded. This is a case of delayed justice since almost five years have lapsed since the applicant is in custody. The applicant was in service and it is doubtful that he would be allowed to join service after such a long time. It is submitted on behalf of the petitioner that th