Kanwaljit Singh Ahluwalia, J. - (1.) THIS is second bail application preferred under Section 439 of the Code of Criminal Procedure, 1973 for grant of regular bail to the petitioner in a case arising out of First Information Report bearing No. 402/2012, registered at Police Station, Kaithun, District Kota Rural for commission of offence punishable under Section 304 -B I.P.C.
(2.) ON 19.11.2003 this Court had dismissed the first bail application preferred on behalf of the petitioner by passing the following order : - "The present petition has been filed under Section 439 Cr.P.C. for grant of regular bail to the petitioner in case arising out of FIR No. 402/2012 registered at Police Station, Kaitoon District Kota for the offence under Section 304B IPC. It is submitted that the charge sheet has been submitted for the offence under Section 498A and 306 IPC. Sharda had died in the matrimonial home within seven years of marriage. According to the complainant, the accused was demanding dowry. The investigating agency for the reasons best known to it, has submitted charge sheet for the offences under Sections 498A and 306 IPC whereas a perusal of the complaint reveals the offence under Section 304B IPC. Without commenting upon the merits of the case, and expressing any opinion, this Court is of the view that at this stage, the petitioner is not entitled to grant of relief of bail. Hence, the present petition is dismissed." A perusal of the First Information Report made by Virendra Kumar Yadav clearly reveals that the deceased was subjected to cruelty on account of demand of dowry soon before the death.
(3.) MR . Anil Upman, the learned counsel appearing for the petitioner, has submitted that the landlord and landlady have turned hostile to the prosecution case. Counsel further submitted that the landlord and landlady, in their statement recorded under Section 161 Cr.P.C. had alleged that since the husband/petitioner was partially impotent on this account deceased had committed suicide. A perusal of the medical examination of the petitioner reveals that his secondary sexual characters were fully developed and he was fully capable to perform sexual intercourse. Be that as it may, since the relatives of the deceased had alleged that the deceased was subjected to cruelty soon before the death on account of demand of dowry, the trial Court ought to have framed alternative charge for commission of offence punishable under Section 308 I.P.C.;