Kiran Kumar S. v. State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **FRIDAY, THE 8[TH] DAY OF OCTOBER 2021 / 16TH ASWINA, 1943** **BAIL APPL. NO. 7076 OF 2021** **CRMC 1057/2021 OF DISTRICT COURT & SESSIONS COURT,KOLLAM, KOLLAM** **CMP 786/2021 OF JUDICIAL MAGISTRATE OF FIRST CLASS , SASTHAMCOTTA, KOLLAM PETITIONER/S:** KIRAN KUMAR S.,AGED 30 YEARS S/O. SADASIVAN PILLAI, CHANDRAVILASAM HOUSE, AMBALTHUM BAKAM MURI, PORUVAZHI VILLAGE, KOLLAM. P.VIJAYA BHANU (SR.) P.M.RAFIQ SRUTHY N. BHAT M.REVIKRISHNAN AJEESH K.SASI RAHUL SUNIL POOJA PANKAJ MITHA SUDHINDRAN 1 STATE OF KERALA REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM 682 031 2 ADDL.R2.THRIVIKRAMAN NAIR, AGED 54 YEARS S/O KRISHNA PILLAI N, KULATHINGARA, MEDATHIL PUTHEN VEEDU, KAITHODU PO, NILAMEL KOLLAM IS IMPLEADED AS PER ORDER DATED 04/10/2021 IN CRL.MA NO.2/2021. SHRI.SAJJU.S., SENIOR GOVERNMENT PLEADER S.RAJEEV SHRI.P.NARAYANAN, ADDL.PUBLIC PROSECUTOR K.K.DHEERENDRAKRISHNAN V.VINAY M.S.ANEER SRI T.A. SHAJI .DGP ## **RESPONDENT/** THIS BAIL APPLICATION HAVING BEEN FINALLY HEARD ON 4.10.2021, THE COURT ON 8.10.2021 DELIVERED THE FOLLOWING: BA.7076/21 2 ## ORDER 1. Petitioner is the sole accused in Crime No.791/2021 of Sooranadu Police Station which is registered under Sections 498A and 304 of IPC. This is an application for Regular Bail filed under under Section 439 of the Code of Criminal Procedure. 2. FIR was lodged by the father of the deceased on 21.6.2021 at about 2.00 am on getting information about the unnatural death of the daughter. Originally FIR was registered under Section 174 Cr.P.C. 3. The marriage between the petitioner/accused (hereinafter referred as the petitioner) and the deceased Vismaya was solemnized on 31.5.2020. It is alleged that father of the deceased agreed to give 101 sovereigns of gold ornaments,1.25 Acres of land and also a good car as dowry. At the time of marriage petitioner was working as an AMVI in motor Vehicles Department. After the marriage she had been living with the petitioner at his house at Poruvazhy Village. While so, she had been subjected to both physical and mental cruelty at the hands of the petitioner since the gold ornaments were less in quantity than agreed and car given was not as good as expected and dowry was not given as agreed. BA.7076/21 3 4. According to the learned counsel for the petitioner, Immediately after the incident he was dismissed from service, summarily on the ground of demand of dowry. Parents, brother, sister-in-law and other relatives and friends are the witnesses. So there is no question of influencing any witnesses. With regard to the allegation of 1.25 acres of land, there is no case that it was demanded or given to the petitioner and 41 sovereigns of gold ornaments was in Bank locker of the couple. Nobody has a case that balance gold has been given or sold by him. With respect to the vehicle, the learned Senior counsel would contend that registration of it stands in the name of father of deceased. EMI is being paid and car is being used by all the members of the family of the deceased. The brother of the deceased took the car once outside the State to meet his fiance and it met with an accident. Petitioner went there being an AMVI and he felt that accident was due to the negligence of the brother-in-law and there had an altercation and push and pull in between them. It is also contended that the quarrel was alleged to be in connection with the quality of the gold ornaments and not about quantity. 5. It is further contended that the victim was Tik Tok show fame and she was in the habit of spending considerable time on WhattsApp, Face BA.7076/21 4 Book, Instagram etc. Since it was exam season, her Face Book account was closed and her phone also was taken by him, only to facilitate her for preparation for exams since it was study holidays. 6. According to the learned Senior counsel, petitioner cannot influence any of the witnesses since prime witnesses are close relatives and friends. There is a distance of 1 ½ hours travel from his residence to the residence of the deceased and he is no longer a Government servant. He filed bail this application on 9.9.2021 and thereafter falsely a complaint was filed alleging threatening only to add materials to show that there is chances for threatening the witnesses. If he is not released on bail he cannot properly brief the counsel. Hence the petition. The petitioner was arrested on 22.6.2021 and he is in custody for the last 108 days. Charge-sheet was also filed. 7. The learned Director General Of Prosecution (DGP) on the other hand would contend that the dispute was not with regard to the quality of the gold but with regard to the quantity itself. Locker No.22 is not joint one but in the name of petitioner alone. Deceased had been subjected to continuous mental and physical cruelty in demand of dowry and that has driven the deceased to commit suicide. On - 29.8.2020 there occurred a quarrel between the petitioner and BA.7076/21 5 deceased while they were returning from Kollam about the car given to her and she was assaulted inside the car. She got out of the car and ran towards a nearby house and according to the prosecution, CW11 has cited to prove that incident. It is further contended by the DGP that on 2.1.2021, the petitioner quarrelled with the deceased and decided to return the car and during night at 1.00 am she was assaulted and taken to her house. There he assaulted the deceased in front of her family members and her brother tried to intervene he was assaulted and he quarrelled with the father-in-law raising dowry issues. That issue was ultimately settled with the intervention of a police man, otherwise criminal case would have been charged against him with respect to that incident. After 2.1.2021 she was staying at her paternal home. But petitioner with out informing the family members, took her back clandestinely from the College to his house on 17.3.2021. She had to consult a mind motivationist for counseling. It is alleged that the petitioner and family members have not participated in the marriage of the brother of the deceased. It is alleged that on 21.6.2021 at 2.00 am, there had a quarrel between them in connection with dowry and thereafter she committed suicide. So according to the learned DGP, this crime occurred out of greed, BA.7076/21 6 hence custodial trial is absolutely necessary. CD was produced for perusal by the DGP. 8. Sri.S.Rajeev, the learned counsel for the de facto complainant would emphatically contend that Section 304B IPC is a social evil and has to be dealt with iron hand. According to the learned counsel, there are evidence in abundance in this case to prove the ingredients of the offence. One day prior to the fateful day, the deceased sent a message to her father on 'Father's day'. Infuriated by that, the petitioner alleged to have thrown away her mobile phone and destroyed it. She was not allowed to contact her father and brother as he blocked the contacts. 9. Copy of post mortem certificate and statement of Assistant Professor and Police Surgeon are enclosed with CD, in which the opinion as to cause of death is reported as 'death due to hanging'. 10. Apart from injury No.1 with respect to, pressure abrasion (ligature mark) etc. relating to hanging, multiple superficial, linear, incised wounds of varying deposition and sizes varying from 0.5x0.1 to 5x0.1 cm over an area 5.2x0.1 cm on the front of left forearm, and an abrasion 1x0.6 cm at its inner extent and abrasion 0.5 x 0.5 cm on the outer aspect of right ankle are the injuries noted. So as rightly BA.7076/21 7 pointed out by the learned senior counsel prima facie no serious injuries of physical torture are noted in the post mortem certificate. 11. Before going to the factual aspects, the factors to be considered while considering an application under Section 439 Cr.P.C quoted by the learned DGP and also counsel for the de facto complainant are relevant to be discussed. 12. In **Virupakshappa Gouda and Another v. State of Karnataka and Another (AIR 2017 SC 1685 = 2017 KHC 6239)** in a matter of cancellation of bail in an 'Honour killing case' it has been held in paragraph 13 thus : “….....................Needless to say, filing of the charge-sheet does not in any manner lessen the allegations made by the prosecution. On the contrary, filing of the charge-sheet establishes that after due investigation the investigating agency, having found materials, has placed the charge-sheet for trial of the accused persons. As is further demonstrable, the learned trial Judge has remained absolutely oblivious of the fact that the appellants had moved the special leave petition before this Court for grant of bail and the same was not entertained. Be it noted, the second bail application was filed before the Principal Sessions Judge after filing of the charge-sheet which was challenged in the High Court and that had travelled to this Court. These facts, unfortunately, have not been taken note of by the learned trial Judge.” BA.7076/21 8 ## 13. The requisite factors while considering a bail application has also been extracted in paragraph 16 which reads thus :- “The court has to keep in mind what has been stated in Chaman Lal v. State of U.P. and another [3]. The requisite factors are: (i) the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence; (ii) reasonable apprehension of tampering with the witness or apprehension of threat to the complainant; and (iii) prima facie satisfaction of the court in support of the charge. In prasanta Kumar Sarkar v. Ashis Chatterjee and another[4], it has been opined that while exercising the power for grant of bail, the court has to keep in mind certain circumstances and factors. We may usefully reproduce the said passage:- “9....among other circumstances, the factors which are to be borne in mind while considering an application for bail are: (i) whether there is any prima facie or reasonable ground to be believed that the accused had committed the offence. (ii) nature and gravity of the accusation; (iii) severity of the punishment in the event of conviction; (iv) danger of the accused absconding or fleeing, if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; BA.7076/21 9 (vii) reasonable apprehension of the witnesses being influenced; and (viii) danger, of course, of justice being thwarted by grant of bail.” ## 14. In **Preet Pal Singh v. State of Uttar Pradesh and Another (2020** **KHC 6484)** while considering the distinction between Sections 439 and 389 Cr.P.C it has been held thus in paragraph 31 and 32 thus : “31.In Kalyan Chadra Sarkar v. Rajesh Ranjan and Anr, this Court held:- “11. The law in regard to grant or refusal of bail is very well settled. The Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed examination of evidence and elaborate documentation of the merits of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committed a serious offence. Any order devoid of such reasons would suffer from non-application of mind.” 32. Even though detailed examination of the merits of the case may not be required by courts while considering an application for bail but, at the same time, exercise of jurisdiction has to be based on well settled principles and in a judicious manner and not as a matter of course as held by this Court in Chaman Lal v. State of U.P. and Anr. (2004) 7 SCC 525) BA.7076/21 10 15. That was a case in which bail was granted to the husband of the deceased in a case charged under section 304 B and other offences and the father of the deceased approached the Apex Court against the grant of bail. While disposing the appeal it has been held in paragraph 28 thus :- “Section 304B was incorporated in the Indian Penal Code by the Dowry Prohibition (Amendment) Act, 1986 (Act 43 of 1986). The object of the amendment was to curb dowry death. Section 304B does not categorize death, it covers every kind of death that occurs otherwise than in normal circumstances. Where the other ingredients of Section 304B of the Code are satisfied, the deeming fiction of Section 304B would be attracted and the husband or the relatives shall be deemed to have caused the death of the bride.” 16. The essential ingredients of attracting Section 304B has also been extracted in paragraph 29, which reads thus :- The essential ingredients for attraction of Section 304B are: (i) the death of woman must have been caused in unnatural circumstances. BA.7076/21 11 (ii) the death should have occurred within 7 years of marriage (iii) Soon before her death the woman must have been subjected to cruelty or harassment by her husband or his relatives and such cruelty or harassment must be for or in connection with the demand for dowry, and such cruelty or harassment is shown to have been meted out to the woman soon before her death. 17. **Sonu v. Sonu Yadav and Another (2021 KHC 6209** ) was a case charged under Section 498A and 304BIPC and also of Dowry Prohibition Act, 1961, Sections 3 and 4. Paragraph 11 of the said judgment is relevant which reads thus : “…..............The High Court cannot be oblivious, in a case such as the present, of the seriousness of the alleged offence, where a woman has met an unnatural end within a year of marriage. The seriousness of the alleged offence has to be evaluated in the backdrop of the allegation that she was being harassed for dowry; and that a telephone call was received from the accused in a close – proximity to the time of death, making a demand. There are specific allegations of harassment against the accused on the ground of dowry. An order without reasons is fundamentally contrary to the norms which guide the judicial process. The administration of criminal justice by the High Court cannot BA.7076/21 12 be reduced to a mantra containing a recitation of general observations. That there has been a judicious application of mind by the Judge who is deciding an application under S.439 of the Cr.P.C must emerge from the quality of the reasoning which is embodied in the order granting bail. While the reasons may be brief, it is the quality of the reasons which matters the most. That is because the reasons in a judicial order unravel the thought process of a trained judicial mind. We are constrained to make these observations because the reasons indicated in the judgment of the High Court in this case are becoming increasingly familiar in matters which come to this Court. It is time that such a practice is discontinued and that the reasons in support of orders granting bail comport with a judicial process which brings credibility to the administration of criminal justice.” 18. Bearing in mind the above settled position the fact situation of this case has to be analyzed. The learned Senior counsel for the petitioner actually did not argue on the merits of the case and was actually emphasizing that the final report has already been filed and there is no chance for the petitioner influencing any of the witnesses and he is no longer a Government servant and 1 ½ hours travel is there from his house to that of the de facto complainant and most of the witnesses are relatives and friends and hence question of influencing them at his instance, does not arise. It is further BA.7076/21 13 contended that a complaint was filed alleging threat, ie, on 15.9.2021 after the filing of the bail application on 9.9.2021, just to give an added strength for getting an easy dismissal of this petition. 19. But at the same time, it has been contended by the counsel that the prosecution case is about the cruelty attributed alleging the quality of the gold and not the quantity and further that according to him, nobody has a case that 1.25 acres of land was demanded or it was given to the accused and 41 sovereigns of gold recovered from the locker is the common locker of the deceased and the petitioner. 20. The learned DGP at the outset would contend that the dispute was not with respect to the quality of the gold but the quantity itself. The statement of the prosecution witnesses including the mother,brother and sister-in-law would show that they could not give 100 sovereigns of gold as agreed and there used to have quarrel and harassment for the less quantity of gold given to her .They also have given statements to the effect that 1.25 acres of property and a good car was agreed to be given. Father of the victim has given statement about the talk before marriage of the deceased to give 101 sovereigns of gold,1.25 acres of land and a good car. So prima facie the contention of the Senior counsel that nobody has any case with BA.7076/21 14 respect to demand of 1.25 Acres of land is not seems to be correct prima facie. 21. The respondents produced copy of 164 statement of CW5 who was the friend of the deceased while studying for BAMS and also of CW6 who had been a close friend of the deceased from LKG onwards. On going through the statements given by CW5 it is seen that the deceased and CW5 had frequent contacts and she was informed by the deceased about the incident alleged to have taken place in January, 2021 during night. It was disclosed by the deceased that the petitioner used to tell her that this marriage was not suitable to his status. Deceased had disclosed to her the suffering she had to undergo at the instance of the petitioner. The statement of CW5 would further reveal that the deceased had no freedom to call anybody especially her family members. 22. CW6 was a friend of the deceased from LKG onwards and she had participated in the marriage of the deceased and they also used to have frequent contact over phone through WhattsApp message and chatting. She has given statement to the effect that after three months of marriage of the deceased, when she used to contact her over phone, the deceased disclosed about the issue of dowry. BA.7076/21 15 Deceased also revealed that out of 101 sovereigns agreed to be given, only 70 sovereigns was given. Deceased disclosed about the physical torture of the petitioner upon her. In May, 2021, the deceased sent her a WhattsApp message seeking for help to go to her house. She has also given a statement that it is on 3[rd] June, 2021 the deceased finally requested for help to go to her house. 23. On a mere glance through the case diary would prima facie show the continuous physical and mental torture which the deceased was subjected to at the at the instance of the petitioner in connection with dowry. 24. With regard to the allegations regarding the quality of the vehicle according to the learned Senior counsel, the vehicle still stands in the name of the de facto complainant, the father in law and father-in-law is paying the EMI and there was no occasion for him to subject the deceased to cruelty on account of the vehicle as alleged by the prosecution. But there is clear statement given by CW5 and CW6 and also the sister in law, father and brother about the complaint of the accused regarding the vehicle given and he was not at all happy with the vehicle given to him as dowry at the time of marriage. Witnesses also have given statements about the presence of this BA.7076/21 16 vehicle after the marriage in front of the house of the petitioner. So the contention of the learned senior counsel that the vehicle was in use of the entire family of the deceased is not seems to be prima facie acceptable. 25. The WhattsApp messages produced from the side of the de facto complainant which is produced as Annexure-R2 series also specifically states about the complaint of the petitioner regarding the vehicle. A mere glance through Annexure-R2 series, the WhattsApp messages between the victim girl and the sister-in-law, would also prima facie show the ill-treatment and harassment at the instance of the petitioner. 26. Prosecution also alleges that in the month of January, 2021 during night, the victim was taken to her paternal home at about 1 – 2 am and in front of the family members, she was assaulted and when her brother intervened, he was also assaulted and thereafter the deceased was staying in her home and the petitioner brought her back. Thereafter also, the ill-treatment continued and the records and statements prima facie would show that she was not having the freedom to talk even to her family members. Admittedly by the prosecution on the alleged day, there was a quarrel and it is after that BA.7076/21 17 she had gone to her room and committed suicide. Even though the Senior counsel would contend that it was only a usual family bickering in between husband and wife, in view of the statement given by the family members and also the close friends of the deceased prima facie, it is very difficult to accept. Prosecution also narrates about an incident of assaulting the deceased inside the car while they were travelling together after shopping and the victim had to get out of the car and take shelter in a neighbouring house. In order to substantiate that allegation, CW11 and CW9 ,10,12,13 and 14 were cited as witnesses. 27. Though the learned counsel for the petitioner would contend that the petitioner is not a Government servant at present and he has been summarily dismissed from service and hence, there is no basis for the apprehension about the influence which he may cause upon the witnesses, especially because the majority of the material witnesses, according to him, are friends and relatives, independent witnesses are also cited to prove various factors. The learned DGP also brought to my attention that there was an occasion for the deceased to conduct a mind motivation counselling since she could not concentrate upon her studies due to the harassment. He has been BA.7076/21 18 cited as a witness. So the possibility of influencing the witnesses cannot be ruled out. Total 102 witnesses are cited by the prosecution. 28. Further more a complaint is said to have been received from Chadayamangalam Police Station stating that the mother of the deceased has received a threatening letter intimidating to give evidence in favour of the petitioner. Though the learned counsel would contend that it is after filing this bail application, that cannot be brushed aside totally in view of the facts and circumstances. 29. The learned Senior counsel for the petitioner would also contend that only if he came out of jail, he would be able to brief the advocate properly and a very serious offence without any basis has been registered against him and hence an opportunity should be given to him. 30. In this context, **Moti Ram & Ors vs State Of M.P (1978 (4) SCC, 47)** was relied on by the learned counsel to contend that the consequences of pre-trial detentions are grave and he quoted paragraph 14 of the judgment which reads thus :- - “The consequences of pre-trial detention are grave. Defendants presumed innocent are subjected to the psychological and physical deprivations of jail life, usually under more onerous BA.7076/21 19 conditions than are imposed on convicted defendants. The jailed defendant loses his job is he has one and is prevented from contributing to the preparation of his defence. Equally important, the burden of his detention frequently falls heavily on the innocent members of his family.” 31. On going through the judgment, it appears that it has no relevance to the case in hand. That was a case in which the Magistrate ordered a surety in a sum of Rs.10,000/- and another condition to bring a surety from the same District was imposed while granting bail to a mason. It has no application to the case in hand. 32. **Satbir Singh v. State of Haryana (2021 (6) SCC 1),** and **Kamesh Panjiyar Alias Kamlesh Panjiyar v. State of Bihar (2005 (2) SCC 388),** also brought to my attention by the learned DGP to interpret the expression, “soon before her death” coming under Section 304B IPC. At this stage, I am not expected to go into all those aspects in detail while considering this bail application and the discussion has already been made with regard to the nature of evidence collected by the prosecution and the prima facie material in support of the charge. 33. Fair trial is a public interest and it would outweigh the personal BA.7076/21 20 interest of the accused, while balancing the personal liberty of the accused with the public interest. Petitioner has been charged with a grave crime of Dowry death, which is a social evil. So evaluating the nature of allegations against the petitioner and further that he was an AMVI though since dismissed from service, and the gravity of accusation ie, the death of 24 year old woman within 13 months of her marriage out of the cruelty and harassment in demand of dowry which drove her to commit suicide and the severe nature of the punishment to be imposed on conviction and the reasonable chances for influencing the witnesses, I am not inclined to grant bail to the petitioner. It is also hereby made clear that all the observations and discussions made above, by this Court is only for the purpose of the disposal of this bail application. 34. In the result, Bail Application dismissed. Sd/- ## **M.R.Anitha, Judge** Mrcs/6.10.