Hon'ble Vijay Kumar Verma, J.
"Whether committing suicide by a woman as a consequence of rape constitutes the offence of abatement of suicide punishable under section 306 of Indian Penal Code (in short 'the IPC')" is the main point that falls for consideration in this bail application, by means of which prayer for bail has been made on behalf of applicant Anil in case crime no. 1254 of 2008 under section 306 I.P.C., P.S. Loni, District Ghaziabad.
2. An FIR was lodged on 31.08.2008 at 6.15 p.m. by the complainant Kapil s/o Surendra Kumar, r/o House No. 440, Gali No. 9, A-Block, Sangam Bihar, Loni, District Ghaziabad. A case under sections 306 IPC was registered at P.S. Loni (Ghaziabad) against the accused Anil s/o Omi (applicant herein) at crime no. 1254 of 2008. The allegations made in the FIR, in brief, are that the complainant used to live in house No. 440, Gali No. 9, A-Block, Sangam Bihar, Loni, Ghaziabad and he was working on the hand pump shop of his brother-in-law (Jija). On 31. 08.2008, when the parents of the complainant had gone out and his sister Sushma aged about 15 years was alone in the house, the complainant came to take lunch at about 3.30 p.m. He found two persons standing outside his house, who went away seeing him. In the meantime, Anil s/o Omi, who was residing in Rajiv Garden, came out from the house of complainant and began to flee away, but he was apprehended by the complainant and was brought to the shop of his brother-in-law Satbir, where police was called and he was handed over to the police after narrating entire matter. It is further averred in the FIR that when after handing over Anil to the police, the complainant along with his brother-in-law come to his house, he found the door of his house bolted from inside and when on pushing, the door was opened, he found that his sister Sushma was hanging on ceiling fan.
3. Sushma was carried to Guru Teg Bahadur Hospital Delhi where she was declared dead. The post-mortem on the dead body of the deceased was conducted in the said hospital. According to the post-mortem report (Annexure-2) the deceased died as a result of Asphyxia due to ante-mortem hanging.
4. I have heard argument of Sri S. A. Imam and Sri S.S. Shukla, Advocates appearing for the applicant and AGA for the State.
5. The main submission made by the learned counsel for the applicant was that if the entire version of the FIR is accepted to be true, even then the offence punishable under section 306 IPC would not be made out in this case, because on the basis of comitting rape with the deceased, it cannot be said that she was instigated by the applicant to commit suicide. The contention of the learned counsel for the applicant was that if rape is committed by any person with any woman and if thereafter that woman commits suicide, then in such case the offence of abatement to suicide punishable under section 306 IPC would not be made out and hence on this ground alone the applicant deserves bail in present case, because the applicant is not in custody for the offence of rape with the deceased.
6. Next submission made by learned counsel for the applicant was that it is a case of homicidal death. It was also submitted by learned counsel in this context that the deceased was a consenting party for having sexual intercourse with the applicant and since she was seen in compromising position with the applicant, hence after committing her murder by her family members, false story of committing suicide by hanging was concocted and applicant has been falsely roped in this case.
7. It is also submitted by learned counsel that the applicant is in jail since 01.09.2008 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed.
8. The AGA has vehemently opposed the bail application and it was submitted by him that rape was committed by the applicant with the deceased, who was aged about 14 years as per post-mortem report and by such act the applicant had induced the deceased to end her life and hence the offence punishable under section 306 IPC is clearly made out against the applicant. It was further submitted by learned AGA in this context that the deceased was living happily with her family members and there was no other cause for her to commit suicide and since suicide was committed by her merely because the applicant had committed rape with her, hence the applicant only was responsible for the commission of suicide by the deceased. The contention of the learned AGA was that had the rape was not committed with the deceased, there was no occasion for her to commit suicide and since she committed suicide just after committing rape with her by the applicant, hence he (applicant) would be deemed to induce the deceased to end her life, because her whole life was ruined by the applicant by committing rape with her and it was for this reason that the deceased was forced to take extreme steps to leave this world by committing suicide and hence the offence of abatement of suicide is clearly made out in this case.
9. I have carefully gone through the entire material on record. There is prima facie evidence to show that when the complainant had reached his house on 31.08.2008 at about 3.30 p.m. to take lunch, the applicant Anil had come out from the house of complainant and he was apprehended by the complainant and was carried to the shop of Satbir, where he was handed over to the police. It has come in the statement of complainant recorded under section 161 Cr.P.C. (Annexure-5) that at that time his sister Sushma was alone in the house, as his parents had gone out. From this statement of the complainant, this fact is also borne out that when after handing over the applicant-accused to police, the complainant along with his brother-in-law came to his house, he found the deceased Sushma hanging on ceiling fan and her chunni was tied in the neck and fan. According to the post-mortem report (Annexure 3), apparent cause of death was found suicide. It is specifically stated in the report (Annexure-4) of department of Forensic Medicine, Guru Teg Bahadur Hospital Delhi that cause of death was Asphyxia due to ante-mortem hanging. This report further shows that at the time of post-mortem examination of the dead body of deceased, her hymen had fresh tear at 6-7 O'clock position along with a bruise of 0.8 cm. at the base of the tear. This finding of the Department of Forensic Medicine is prima facie supporting the theory of rape with the deceased. Therefore having regard to all these facts and accepting aforesaid submissions made by learned AGA at this stage, but without expressing any final opinion about these submissions, in this heinous ante-social crime of committing rape with a minor girl aged about 14-15 years and thereby inducing her to end her life, the applicant does not deserves bail.
10. In my considered opinion, on the basis of the long incarceration in jail also, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena vs. Union of India and others 2008 (63) ACC 115, in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.
11. For the reasons mentioned herein-above, the bail application of the applicant Anil is hereby rejected.
12. The trial court is directed to conclude the trial of the applicant within a period of six months by making sincere efforts avoiding unnecessary adjournments and applying the provisions of section 309 of the Code of Criminal Procedure.
13. The office is directed to send a copy of this order to the court concerned within a week for necessary action.
Dated: 29th June 2009.
v.k. Updh.
