IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Misc.15998-M of 2008
DATE OF DECISION : DECEMBER 10, 2008
VIKAS KUMAR ....... PETITIONER(S)
VERSUS
STATE OF HARYANA .... RESPONDENT(S)
CORAM : HON'BLE MR. JUSTICE AJAI LAMBA
PRESENT: Mr. Hemant Bassi, Advocate, for the petitioner(s).
Mr. Sidarath Sarup, AAG, Haryana.
Dr. Surya Parkash, Advocate, for the complainant.
AJAI LAMBA, J. (Oral)
This petition under Section 439, Code of Criminal Procedure,
seeks bail in FIR No.10 dated 12.1.2008 under Sections 498-A, 406, 304-B,
302, 34, Indian Penal Code, Police Station, Barwala, District Hisar.
The facts, in brief, as have been brought out by the learned
counsel for the petitioner, are that the petitioner was married with Poonam
on 30.1.2005. There was an issue – a son; namely, Modak. Modak was
suffering from a serious eye ailment requiring cornea transplantation of
which the success rate is 60%. It has been contended that Poonam was
Criminal Misc.15998-M of 2008 2
under tremendous mental tension on account of ailment of her son.
` On 10.1.2008, Poonam left the matrimonial home with the
child during early hours. Intimation was given in regard to this to Rajesh
Chugh, cousin of Poonam. It seems that Rajesh Chugh gave an
application, which was entered as DDR No.17 in Police Station, Barwala,
and has been placed on record as Annexure P-2.
It is the specific case set up on behalf of the petitioner that
Poonam left a suicide note. The suicide note was brought to the notice of
Rajesh Chugh, however, no reference was made in his statement. Be that
as it may, the document (Annexure P-2) indicates that there was no
allegation as against the petitioner or his other family members in regard
to demand of dowry.
It has also been brought out that the dead body was recovered
on 12.1.2008 from Rajli Canal. The FIR was lodged on the same day with
allegations not only against the petitioner and his mother but also against
his maternal uncle, sister and her husband-Rajesh.
Guided by the contents of the suicide note, a search was made
around the canal. Learned counsel for the petitioner further contends that
no proper investigation was conducted and the suicide note was not
investigated. Be that as it may, the suicide note was taken into account for
grant of bail to Ishwar Devi alias Ishwari Devi, mother in law of the
deceased. In this regard, reference has been made to order (Annexure P-
5).
Supplementary statement of Munish, brother of the deceased,
was recorded on 18.1.2008, wherein again, a reference to the suicide note
Criminal Misc.15998-M of 2008 3
has been made. Munish has admitted the suicide note, however, has tried
to explain it by saying that the accused might have connived and forced
his deceased-sister to write the note to defend themselves. The
investigation file reveals that on 19.1.2008, the suicide note was handed
over by Ishwar Devi alias Ishwari Devi at the time of her arrest.
Learned counsel for the petitioner has also stated that the
petitioner has been in custody since 18.1.2008. An application has been
filed under Section 319, Code of Criminal Procedure, for summoning the
three relatives, referred to above as additional accused. Even a criminal
complaint has been filed in which the petitioner and other family members
are being prosecuted.
The contention of the learned counsel for the petitioner,
therefore, is that a doubt has been created on account of ignorance of the
suicide note by the Investigating Agency. When the defence is brought
out, the suicide note would be established. The suicide note establishes
innocence of the petitioner.
Learned counsel for the respondent-State, to whom assistance
has been given by the learned counsel for the complainant, states that
there have been as many as three deaths in so much as Poonam was
pregnant at the time when she died. The body of Modak is yet to be
recovered and Modak might be alive and in the custody of the accused
side.
I have considered the issue. The material placed before the
court is required to be considered only in the context of the prayer for bail.
A perusal of the document (Annexure P-1) that has been
Criminal Misc.15998-M of 2008 4
termed as a suicide note/dying declaration, indicates that the deceased
declared that she was in depression due to eye problem of her child. The
success rate of cornea transplantation is 60%. If the operation is not
successful, more damage could be caused to the eyes of the child. Under
these circumstances, a decision had been taken by the deceased to jump in
a river and commit suicide. The note further states that there is no fault of
any one in the matter. The action of suicide is in relation to the child and
the deceased only. The parents or the in-laws are not at fault. Be that as it
may, for reasons best known to the Investigating Agency, the suicide note
has not been brought on the record of the investigation file although,
admittedly, it has been referred to in the statement of the witness. No
investigation in regard to the note, however, has been conducted.
It seems that an application for further investigation was
made from the side of the accused which, however, was declined. A
petition was carried to this court also in the same context, which was
withdrawn.
I have also referred to order (Annexure P-5) passed by the
Sessions Judge, Hisar, wherein, in para-8, it has been recorded “The
police has not investigated the matter in the light of the suicidal note of
the victim”.
I have also taken note of the fact that although on 18.1.2008,
Munish, brother of the deceased, had referred to the suicide note,
however, the suicide note had been taken possession of on 19.1.2008,
purportedly at the time of effecting the arrest of Ishwar Devi alias Ishwari
Devi, mother of the petitioner.
Criminal Misc.15998-M of 2008 5
Consideration of the facts show that, indeed, son of the
petitioner and the deceased; namely, Modak, suffered from a serious eye
ailment. The suicide note was brought to the notice of the Investigating
Agency, however, no investigation in that regard has been conducted.
Contents of the suicide note absolve the petitioner as the same indicate
depressive mental state of the deceased on account of her son’s eye
ailment. The note has been mentioned even in the statements of witnesses
i.e. relatives of the deceased. While allowing bail to Ishwar Devi alias
Ishwari Devi, the suicide note was taken into account. Allegations in the
FIR against Ishwar Devi alias Ishwari Devi and the petitioner are
somewhat similar. Three of the persons implicated by the complainant
have been found innocent by the Investigating Agency as no incriminating
material could be collected against them during investigation. The
investigation has been concluded and the petitioner is in custody since
18.1.2008.
I have also considered that the trial is likely to take
considerable time as an application under Section 319, Code of Criminal
Procedure, is pending adjudication and if the same is allowed, de-novo
trial would follow.
Without expressing any opinion on the merits of the case, this
petition is allowed.
Bail to the satisfaction of the trial Court, Hisar.
December 10, 2008 ( AJAI LAMBA ) Kang JUDGE