High Court · 2025

1. Heard learned counsel for the applicant as well as learned Additional Advocate representing the State. Government

2. By means of this application under Section 439 of Cr.P.C., applicant-Ajay Singh, who is involved in Case Crime No. 70 of 2024, under Sections 498-A, 304-B of I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Bah, District Agra, seeks enlargement on bail during the pendency of trial.

3. Brief facts of the case, which are required to be stated are that complainant-Phoolmala who is mother of deceased-Kiran lodged a first information report on 22.04.2024 for the alleged offence under Sections 498-A, 304-B of I.P.C. and Section 3/4 of Dowry Prohibition Act against Ajay Kumar (applicant), Vijay Singh, Sharada Devi, Akash and Anubhav who are husband, father-in-law, mother-in-law and brothers-in-law of the deceased, respectively, making allegations inter alia that marriage of her daughter was solemnized with the applicant on 18.02.2020 but after the marriage, her daughter was being harassed and tortured by the accused persons in her matrimonial home on account of non-fulfilment of their demand of Alto car, whereas she had spent about 8,00,000/- in the marriage and had given all household articles, ornaments as well as a Pulsar motorcycle. Later on, a male child was also born to her daughter, but even then, there was no change in the behaviour of her in-laws. On 22.04.2024, she received an information from an unknown person that her daughter has been done to death in her matrimonial home. On the said information, on

22.04.2024 at about 5.00 P.M. she along with other family members went to her matrimonial home, where she was found dead and all other family members had fled away along with two years old son of her daughter.

4. Main substratum of argument of learned counsel for the applicant is that though the complainant who is mother of the deceased has made allegation of demand of dowry against the applicant but when she was examined before the trial court as PW-1, she has not supported the prosecution case in her examination-in-chief. Thereafter, statement of brother of the deceased was recorded as PW-2, he has also been declared hostile, hence there are bleak chances of conviction of the applicant. It is further submitted that co-accused Smt Sharada Devi, who is mother-in-law of the deceased, has been granted bail by the Coordinate Bench of this Court vide order dated 08.11.2024 in Criminal Misc. Bail Application No. 38572 of 2024, therefore, the applicant who is languishing in jail since 27.04.2024 having no criminal history to his credit, may be enlarged on bail.

5. Per contra, learned Additional Government Advocate for the State vehemently opposed the prayer for bail of the applicant by contending that the deceased died her unnatural death within four and half years of her marriage in her matrimonial home, hence the presumption under Sections 113A and 113B of the Evidence Act shall be drawn against the applicant. Referring the postmortem report of the deceased, it is also pointed out that at the time of her unnatural death, she was having pregnancy of about two months. Much emphasis has been given by contending that F.I.R. of this case was lodged on 22.04.2024, whereas statement of PW-1 and PW-2 have been recorded after a considerable delay on 14.11.2024 and 13.01.225, therefore, possibility of winning over the prosecution witnesses from the side of accused cannot be ruled out. He also submits that in view of the recent judgment of Hon'ble the Apex Court in the case of Shabeen Ahmad vs. The State of Uttar Pradesh and Another, 2025 LiveLaw (SC) 278, the bail application of the applicant is liable to be rejected.

6. Having heard learned counsel for the parties and perusing the record, I find that it is not in dispute that the complainant-Smt Phoolmala (mother of the deceased) has fully supported the prosecution case as mentioned in the F.I.R. in her examination-in-chief dated 14.11.2024 giving vivid description of the incident, but she has given some contradictory statements in her cross-examination. After cross- examination of PW-1, examination-in-chief of PW-2 was recorded on 13.01.2025, then he supported the version of cross-examination of PW-1. From tone and tenor of the cross-examination of PW-1 and examination-in-chief of PW-2, possibility of winning over the witnesses cannot be ruled out. The law is well settled that a man can lie, but the circumstances and material evidence on record cannot.

7. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra, (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances.

8. The issue regarding the evidentiary value of examination-in-chief of such witnesses, who had turned hostile in their cross-examination, has also been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross- examination, the testimony in examination-in-chief cannot be outrightly discarded provided the same in examination-in-chief supporting (statement prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.

9. Since the allegation of the prosecution and defence of the accused are still open to be urged before the trial court, this Court in exercise of its powers under Sections 439 Cr.P.C. is not examining the statements of prosecution witnesses meticulously so that trial of the applicant may not be affected.

10. So far as submission of learned counsel for the applicant that co-accused Sharada Devi has been granted bail is concerned, I find that she has been granted bail considering one of the facts that she was living separately along with the applicant who is husband of the deceased, hence the same is distinguishable from the case of the applicant.

11. However, considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.

12. Accordingly, the bail application is rejected.

13. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

14. Needless to say that trial Court shall made an endeavour to conclude the trial of the applicant expeditiously without granting any adjournment to either of the parties.

15. Copy of this order be sent to the complainant and trial Court concerned within a week. KASHIFA High Court of Judicature at Allahabad Order Date :- 6.3.2025 Kashifa

1. Heard learned counsel for the applicant as well as learned Additional Advocate representing the State. Government

2. By means of this application under Section 439 of Cr.P.C., applicant-Ajay Singh, who is involved in Case Crime No. 70 of 2024, under Sections 498-A, 304-B of I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Bah, District Agra, seeks enlargement on bail during the pendency of trial.

3. Brief facts of the case, which are required to be stated are that complainant-Phoolmala who is mother of deceased-Kiran lodged a first information report on 22.04.2024 for the alleged offence under Sections 498-A, 304-B of I.P.C. and Section 3/4 of Dowry Prohibition Act against Ajay Kumar (applicant), Vijay Singh, Sharada Devi, Akash and Anubhav who are husband, father-in-law, mother-in-law and brothers-in-law of the deceased, respectively, making allegations inter alia that marriage of her daughter was solemnized with the applicant on 18.02.2020 but after the marriage, her daughter was being harassed and tortured by the accused persons in her matrimonial home on account of non-fulfilment of their demand of Alto car, whereas she had spent about 8,00,000/- in the marriage and had given all household articles, ornaments as well as a Pulsar motorcycle. Later on, a male child was also born to her daughter, but even then, there was no change in the behaviour of her in-laws. On 22.04.2024, she received an information from an unknown person that her daughter has been done to death in her matrimonial home. On the said information, on

22.04.2024 at about 5.00 P.M. she along with other family members went to her matrimonial home, where she was found dead and all other family members had fled away along with two years old son of her daughter.

4. Main substratum of argument of learned counsel for the applicant is that though the complainant who is mother of the deceased has made allegation of demand of dowry against the applicant but when she was examined before the trial court as PW-1, she has not supported the prosecution case in her examination-in-chief. Thereafter, statement of brother of the deceased was recorded as PW-2, he has also been declared hostile, hence there are bleak chances of conviction of the applicant. It is further submitted that co-accused Smt Sharada Devi, who is mother-in-law of the deceased, has been granted bail by the Coordinate Bench of this Court vide order dated 08.11.2024 in Criminal Misc. Bail Application No. 38572 of 2024, therefore, the applicant who is languishing in jail since 27.04.2024 having no criminal history to his credit, may be enlarged on bail.

5. Per contra, learned Additional Government Advocate for the State vehemently opposed the prayer for bail of the applicant by contending that the deceased died her unnatural death within four and half years of her marriage in her matrimonial home, hence the presumption under Sections 113A and 113B of the Evidence Act shall be drawn against the applicant. Referring the postmortem report of the deceased, it is also pointed out that at the time of her unnatural death, she was having pregnancy of about two months. Much emphasis has been given by contending that F.I.R. of this case was lodged on 22.04.2024, whereas statement of PW-1 and PW-2 have been recorded after a considerable delay on 14.11.2024 and 13.01.225, therefore, possibility of winning over the prosecution witnesses from the side of accused cannot be ruled out. He also submits that in view of the recent judgment of Hon'ble the Apex Court in the case of Shabeen Ahmad vs. The State of Uttar Pradesh and Another, 2025 LiveLaw (SC) 278, the bail application of the applicant is liable to be rejected.

6. Having heard learned counsel for the parties and perusing the record, I find that it is not in dispute that the complainant-Smt Phoolmala (mother of the deceased) has fully supported the prosecution case as mentioned in the F.I.R. in her examination-in-chief dated 14.11.2024 giving vivid description of the incident, but she has given some contradictory statements in her cross-examination. After cross- examination of PW-1, examination-in-chief of PW-2 was recorded on 13.01.2025, then he supported the version of cross-examination of PW-1. From tone and tenor of the cross-examination of PW-1 and examination-in-chief of PW-2, possibility of winning over the witnesses cannot be ruled out. The law is well settled that a man can lie, but the circumstances and material evidence on record cannot.

7. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra, (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances.

8. The issue regarding the evidentiary value of examination-in-chief of such witnesses, who had turned hostile in their cross-examination, has also been well considered and settled by the Apex Court in the case of Selvaraj @ Chinnapaiyan Vs. State Represented By Inspector of Police, (2015) 2 SCC 662 by holding that merely for the reason that the witnesses have turned hostile in their cross- examination, the testimony in examination-in-chief cannot be outrightly discarded provided the same in examination-in-chief supporting (statement prosecution) is corroborated from the other evidence on record. In other words, if the court finds from the two different statements made by the same accused, only one of the two is believable, and what has been stated in the cross-examination is false, even if the witnesses have turned hostile, the conviction can be recorded believing the testimony given by such witnesses in the examination-in-chief. However, such evidence is required to be examined with great caution.

9. Since the allegation of the prosecution and defence of the accused are still open to be urged before the trial court, this Court in exercise of its powers under Sections 439 Cr.P.C. is not examining the statements of prosecution witnesses meticulously so that trial of the applicant may not be affected.

10. So far as submission of learned counsel for the applicant that co-accused Sharada Devi has been granted bail is concerned, I find that she has been granted bail considering one of the facts that she was living separately along with the applicant who is husband of the deceased, hence the same is distinguishable from the case of the applicant.

11. However, considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.

12. Accordingly, the bail application is rejected.

13. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

14. Needless to say that trial Court shall made an endeavour to conclude the trial of the applicant expeditiously without granting any adjournment to either of the parties.

15. Copy of this order be sent to the complainant and trial Court concerned within a week. KASHIFA High Court of Judicature at Allahabad Order Date :- 6.3.2025 Kashifa