IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgment delivered on: 18.01.2024

BAIL APPLN. 1659/2023

AVADH NARAYAN KUSHWAHA ….. Applicant
versus
STATE ….. Respondent

Advocates who appeared in this case: For the Applicant : Mr. Neeraj Kumar Jha and Mr. Rishabh Kumar Jha, Advs.

For the Respondent : Mr. Utkarsh, APP for the State with SI Ankit Maan, P.S. Ranhola.

CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
AMIT MAHAJAN, J

1.The present application is filed under Section 439 of the Code of Criminal Procedure, 1973 (CrPC), seeking regular bail in FIR No. 558/2020 dated 04.05.2020 registered at Police Station Ranhola, for
offences punishable under Sections 498A/304B/34 of the Indian Penal Code,1860 (IPC).

2.The present FIR was registered at the instance of Sh. Nand Kumar, father of the deceased Chandavati against her husband, Awadh Narayan (the applicant), and his family members under Sections
498A/304B/34 of the IPC. The applicant and the deceased got married on 21.11.2017, and a child was born out of the wedlock. It is alleged that the deceased was subjected to harassment and cruelty by her
husband and her in-laws, and was thrown out of the house after 10-11 months of marriage. The complainant on getting to know about the alleged incident took the deceased back to the parental home, and after 5-6 months, her in-laws came, made amends, and took the deceased
back with them.

3.The complainant further alleged that he had given a motorcycle to the deceased in marriage, whose papers were in her name. He alleged that the deceased’s in-laws repeatedly pressurised her to get the
documents of the motorcycle registered in the applicant’s name.

4.On 30.04.2020, the deceased called her mother and informed her about the atrocities she had been going through. She also complained that the applicant was threatening to kill her and her child.

5.On 01.05.2020, the complainant got a call from the police about the death of his daughter. He found out that his daughter had hung herself with a saree tied to a T-shaped iron rod attached to the ceiling,
and had passed away. Since the deceased had been married for only about 3 years, the SDM, Punjabi Bagh was informed. In the post mortem report of the deceased, the cause of death was stated to be
“asphyxia”.

6.On 03.05.2020, the complainant along with his son reached the Police Station and made the complaint which led to registration of the present FIR.

7.The applicant was arrested on 05.05.2020 and has been in judicial custody since then. He was granted interim bail on the recommendation of HPC guidelines from 19.05.2021 to 08.04.2023.

8.The chargesheet in the present case has been filed under Sections 498A/304B/34 of the IPC and subsequently, charges have been framed against the applicant. The other accused persons, however, have been discharged by the learned Trial Court by order dated 06.04.2022.

9.The learned counsel appearing on behalf of the applicant submitted that the applicant has been in incarceration since 05.05.2020. He submitted that the investigation, in the present case, is complete and no purpose would be served by keeping the applicant in further custody. There are no chances of tampering with the evidence as the investigation is already over and the trial is also not likely to be
completed in the near future.

10.The learned counsel submitted that the applicant and the deceased shared a good relationship with each other and she never complained of any altercations or disputes. The allegations of cruelty
are made for the first time in the present FIR. He submitted that the applicant has a daughter aged about 2.5 years of age who is to be taken care of.

11.He further submitted that no CDR has been obtained to corroborate the fact that the deceased made a phone call to her mother on 30.04.2020.

12.Per Contra, the learned Additional Public Prosecutor for the State, opposed the grant of bail to the present applicant on the ground that there are grave and serious allegations against the applicant, and
the investigation clearly reveals that the deceased was subjected to harassment and cruelty in relation to demand of dowry which compelled her to commit suicide.

13.He further stated that by virtue of Section 113B of the Indian Evidence Act, 1872, there is presumption against the applicant that he caused dowry death.

14.Heard learned counsel for the parties and perused the record.

Reasoning

15.The allegations made by the complainant are that, on 30.04.2020, the deceased/victim had called her mother and informed her that the applicant had threatened to kill her and her child. The only allegation qua the demand of dowry relates to the motorcycle which was allegedly given by the complainant at the time of marriage in the year 2017. It is alleged that the deceased’s in-laws were pressurising her to get the documents of the motorcycle registered in the applicant’s name.

16. As noted above, it is not the allegation that the victim was subjected to cruelty in connection with the demand for dowry soon before her death. It is also not alleged that the motorcycle was a result
of a demand made by the applicant soon before her death. Section 304B of the IPC reads as under:

“304B. 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.”

17.The basic ingredient to attract presumption in terms of Section 304B of the IPC is that the death should have occurred under circumstances which are not normal within seven years of her marriage
and the victim was subjected to cruelty or harassment by her husband or any of her husband’s relative in connection with any demand for dowry soon before the death.

18.It is not a case of the prosecution that the petitioner or his family members have been alternatively charged for offences under Section 302 or 306 of the IPC. In fact, the other co-accused persons are stated to have been discharged by the learned Trial Court. As pointed out by the learned counsel for the applicant, at this stage, no CDR of the victim or the complainant’s mother has been obtained to corroborate the allegation that the victim had called her mother on 30.04.2020 and complained about the cruelty in connection with demand of dowry.

19.In Savita v. State of Delhi : (2019) 10 SCC 29, the Hon’ble Supreme Court granted bail to the accused charged for offences punishable under Sections 498-A and 304 of the IPC considering that the accused had already been in jail for 27 months out of a total sentence of 10 years’ rigorous imprisonment.

20.The object of judicial custody is to secure the presence of the accused persons during the trial. The object is neither punitive nor preventive and the deprivation of liberty has been considered as a
punishment. The applicant cannot be made to spend the entire period of trial in custody especially when the trial is likely to take considerable time. The presence of the accused can be secured at the time of trial by putting appropriate conditions.

21.Therefore, in the above circumstances, in the absence of any specific allegation of demand of dowry or causing harassment to the deceased soon before her death in connection with any demand of
dowry; and considering that the applicant is in custody since 05.05.2020; the applicant has a two-and-a-half-year old child to be taken care of, and the fact that the chargesheet has already been filed,
which is pending at the stage of prosecution evidence, I am inclined to grant bail to the present applicant. Any apprehension of the applicant absconding or fleeing can also be taken care of by putting appropriate conditions.

22. Without commenting further on the merits of the case, keeping the facts and circumstances in mind and the fact that the trial is likely to take some time, I am satisfied that the applicant has made out a case for the grant of regular bail.

23.The applicant is, therefore, directed to be released on bail on furnishing a bail bond for a sum of ₹1,00,000/- (Rupees One Lakh only) with two sureties of the like amount to the satisfaction of learned Trial Court / Duty Metropolitan Magistrate on the following conditions:

a. He shall not leave India without prior permission of the learned Trial Court;
b. He shall cooperate in the trial and appear before the Trial Court of the case as and when required;
c. He shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case;
d. He shall not, in any manner, try to contact any of the witnesses;
e. He shall provide his mobile number to the investigating officer (IO) concerned/SHO concerned at the time of release which shall be kept in working condition at all times.
f. In case of change of residential address and/or mobile number, the same shall be intimated to the Investigating Officer/Court concerned by way of an affidavit.

24.In the event of there being any FIR/DD entry/ complaint lodged against the applicant, it would be open to the State to seek redressal by filing an appropriate application for cancellation of bail.

25.It is also made clear that the observations made in the present case are only for the purpose of considering the bail application and should not influence the outcome of the trial and also not be taken as an expression of opinion on the merits of the case.

26.The present application is allowed in the aforesaid terms.

AMIT MAHAJAN, J
JANUARY 18, 2024
“SS” Signature Not Verified Digitally Signed By:HARMINDER KAUR Signing Date:18.01.2024
20:32:36 BAIL APPLN. 1659/2023