@JUDGMENTTAG-ORDER
B.J. Shethna, J.@mdashThese two misc. second bail petitions are disposed of this common order as they are arising out of same incident. Second bail application No. 3460/98 is filed by accused petitioners Bheralal husband of deceased Aijee, Saku, father-in-law of deceased Aijee and Smt. Sohani alias Soni, mother-in-law of deceased Aijee. Whereas, second bail application No. 3495/98 is filed by Smt. Dali, who is not related either to deceased or to the accused persons. All the accused are facing charge u/s 306 and 498A, IPC on the death of deceased Aijee, who died after consuming poison on 29-7-1998. The case is also committed to the, Court of sessions. Learned counsel Shri Shah appearing for the accused persons Bherulal and other relatives of deceased Aijee vehemently submitted that even taking the prosecution case as it is it cannot be said that the accused persons have committed offence u/s 306, IPC. According to him, at the most, offence, if any, is committed by the accused persons then i.e. u/s 498A, IPC which is punishable for three years imprisonment only, therefore, the accused should be enlarged on bail as they are in jail since last more than four months.
2. However, learned counsel Shri Shishodia appearing for the accused petitioner Smt. Dali vehemently submitted that she was not related to the deceased Aijee, therefore, there is no question of application of Section 498A, IPC against the accused Smt. Dali. He further submits that no offence u/s 306, IPC is made out against the accused petitioner Smt. Dali from the statements of prosecution witnesses. Mere beating is not sufficient to hold that the accused Smt. Dali has committed offence u/s 306, IPC. He further submitted that on being abused by deceased Aijee she gave beating to the deceased in presence of in-laws of the deceased, but nothing more was done by her. It is a different matter that after incident of beating, deceased Aijee went to the forest and consumed poison. He, therefore, submitted that being a lady she should be granted bail as since long she is in jail.
3. Both these applications were vehemently opposed by learned public prosecutor Shri Upadhaya. It was submitted by him that there is sufficient material to come to the conclusion that prima facie case is made out against the accused u/s 306, IPC which is punishable with imprisonment of 10 years with fine. He submitted that as per the prosecution case the deceased Aijee was beaten by accused Dali as she was suspecting illicit relations of deceased Aijee with her son and though the beating was given in presence of her in-laws they have not even tried to intervene or tried to save their daughter-in-law. He further submitted that from the evidence of father and brother of deceased Aijee the prima facie case is made out for the offence u/s 498A, IPC as the deceased was time and again harassed by her husband and her in-laws. He, therefore, submitted that when the Court below after pursuing the material before it rejected their second bail application then this Court should not grant the same.
4. Apart from the aforesaid submissions made by the learned counsel Shri Shah and Shri Shishodia for the respective accused persons, both of them have relied upon the single Bench Judgment of this Court in case of Manish Kumar Sharma v. State of Rajasthan reported in 1994(2) WLC (Raj) page 69 : 1995 Cri LJ 3066 and Submitted that the mens rea on the past of the accused lacks in this case, therefore, no offence u/s 306, IPC is made out by either of the accused. In Manish Kumar''s case (supra), the learned Single Judge of this Court allowed the revision petition filed by the accused Manish Kumar, who was facing trial u/s 306, IPC and quashed the same as according to learned Judge totality of the evidence in that case was not enough to make out a case of instigating, aiding or illegal omission on the part of the accused with requisite criminal intent or mensrea. In Manish Kumar''s case (supra), a complaint was filed on the death of deceased Smt. Kusum Devi, who was aged about 32 years, who married to the complainant 20 years before and having one daughter and two sons and staying in their joint Hindu family. The accused Manish Kumar was their neighbour, aged only 24 years, who used to frequently visit their house and having close relations with deceased Smt. Kusum Devi and taking her to hotel and gardens etc. taking disadvantage of their poverty. Deceased Kusum Devi had borrowed a sum of Rs. 200/- from the accused Manish Kumar. Ram Kishore and Anil Sharma did not like the frequent visits of the accused to their house. There was an allegation against the accused that he committed theft of "Paejab" belong to Seema. There was also an evidence to the effect that there were frequent quarrels between the petitioner and Kusum Devi and Kusum Devi started living a life full of tension and the persistent demand made by the accused in respect of Rs. 200/- added to tension of the deceased Smt. Kusum Devi. On the fateful date of incident i.e. 22-5-83 when Kusum Devi and Anil were taking food in (heir house, the accused demanded his money back by uttering the following words :-
5. Coming to the facts of this case, it appears that accused Smt. Dali rightly or wrongly had the impression that deceased Aijee had illicit relations with her (Smt. Dali) son. It also appears that due to some alteration took place between them, the accused Smt. Dali started beating deceased Aijee in presence of her in-laws, though they were very much present they did not make any attempt to save their daughter-in-law. From the evidence of the prosecution witnesses namely father and brother of deceased Aijee it prima facie appears that before that incident also deceased Aijee was harassed not only by her husband, who was of course not present at the time of incident, but also by her in-laws.
6. Under the circumstances, a young lady, who has been beaten in presence of many in the broad day light by another lady on such a reckless allegation and other accused persons, who were present there did not make any attempt even to save their daughter-in-law and under such circumstances if she had committed suicide then it cannot be said that no offence u/s 306, IPC is made out.
7. Thus, in my humble opinion the judgment of learned single Judge in
8. At this stage, usual request is made by the learned counsel for the accused that it may be made clear that whatever observations made in this order will not be used by the trial Court against the accused at the time of trial. It goes without saying that the trial is to be decided by the Court on the evidence led before it and not on the observations made by this Court while deciding bail applications. One more request was made by the learned counsel for the petitioners that in these cases there are two lady accused, therefore, the trial Court be directed to dispose of the cases as early as possible. This Court is not aware about the pendency of cases before the trial Court. Merely because there are two lady accused in this case that fact itself would not be a ground for this Court to direct the trial Court to expedite the trial. However, this request can be made by the accused before the trial Court itself, which will consider the same and it will take just decision on such nearest looking to the backlog of cases pending before it.
9. With these observations second bail applications are dismissed.
