High Court
Case Details
Neutral Citation No. - 2023:AHC:184245 Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20561 of 2022 Applicant :- Lokesh Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Rajesh Rai,Avinash Singh Chauhan,Virendra Singh Chauhan Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J. 1. List revised.
Legal Reasoning
10. In so far as the statement of Cheenu is concerned and the arguments as defence in the present bail application is concerned, the same were available before the Court and the said statements were considered by the Court at the time of decision of the first bail application. Learned counsel for the applicant has himself admitted that there is no fresh and new ground available to the applicant. It is trite law that the second bail application can only be considered on fresh and new grounds and not otherwise. The said law has been reiterated by this Court in extenso in Criminal Misc. Bail Application No.53377 of 2022 (Rajkaran Patel Vs. State of U.P.) decided on 17.5.2023. 11. Looking to the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected. (Samit Gopal, J.) Order Date :- 22.9.2023 Gaurav Kuls Digitally signed by :- GAURAV KULSHRESTHA High Court of Judicature at Allahabad
Arguments
2. Heard Sri M.P. Rai, learned Senior Advocate assisted by Sri Rajesh Rai, learned counsel for the applicant, Sri Ajay Singh, learned A.G.A-I for the State and perused the material on record. 3. Sri Virendra Singh Chauhan, Advocate appears on behalf of the applicant and submits that he had filed a parole application being Parole Application No.6 of 2023 on behalf of the applicant which may be dismissed as not pressed. 4. As prayed, the prayer is allowed. The parole application is dismissed as not pressed. 5. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Lokesh Kumar, seeking enlargement on bail during trial in connection with Case Crime No.1531 of 2020, under Sections 302, 498-A IPC, registered at Police Station Vijay Nagar, District Ghaziabad. 6. This is a second bail application. The first bail application of the applicant was rejected vide order dated 23.3.2022 passed by this Court in Criminal Misc. Bail Application No.19147 of 2021. 7. The learned counsel for the applicant although admits that there is no new ground available to the applicant in the present bail application but argues to the effect that a witness Cheenu was interrogated during investigation who has stated of seeing the neck of the deceased being wrapped twice with dupatta. It is argued that even the police of PRV who reached the place of occurrence has stated the neck to be wrapped twice as such the opinion of the doctor that the death is due to asphyxia as a result of strangulation is inconsistent with the same, annexure nos.4 and 5 being the statements of the said two witnesses have been placed before the Court. It is argued that the applicant has been falsely implicated in the present case. The applicant is in jail since 3.12.2020. 8. Per contra learned counsel for the State vehemently opposed the prayer for bail and argued that the present bail application is the second bail application. The statements of the said witnesses were considered while deciding the first bail application. Even the same were available at the time as would appear from the order dated 23.3.2022 rejecting the first bail application in which it is specifically stated that charge sheet in the matter has been submitted, as such the investigation had concluded before decision of the first bail application and the said material was very well available and was also considered by the Court. There is no new and fresh ground available to the applicant. The present bail application be thus rejected. 9. After hearing the counsel for the parties and perusing the record, it is evident that the present bail application is the second bail application. The first bail application was rejected vide order dated 23.3.2022, the said order is extracted hereunder:- "Heard Sri Janmed Kumar, learned counsel for the applicant, Sri Sudhir Bharti, learned counsel for the first informant and Sri Ankit Srivastava, learned counsel for the State and perused the material on record. This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Lokesh Kumar, seeking enlargement on bail during trial in connection with Case Crime No. 1531 of 2020, under Sections 302, 498-A IPC, registered at P.S. Vijay Nagar, District Ghaziabad. Learned counsel for the applicant argued that although the applicant is the husband of the deceased Smt. Geeta Sagar but he has been falsely implicated in the present case. It is argued that the marriage of the applicant with the deceased was solemnized on 28.04.2009 and the deceased committed suicide and died on 01.12.2020. Learned counsel for the applicant has further argued that during investigation Cheenu the son of the deceased who is aged about 9 years was interrogated who stated that there use to be fight between his father and mother regularly and on the day of incident, there was some fight after which his mother broke the burner for cooking food and then locked the door from inside and in spite of asking for opening it did not open and then police was informed who came and with great difficulties, broke the door and his mother was hanging and dead. It is argued that the case is a case of suicide. Learned counsel has argued that the First Information Report in the present case was lodged under Sections 306, 498-A IPC but the police without any credible evidence converted the same into a case under Sections 302 IPC and 498-A IPC vide its G.D. No. 30 dated 29.12.2020. It is argued that charge sheet in the present matter has been submitted against the applicant and as such there are no chances of his not cooperating in the investigation or tampering with evidence. He further argued that the applicant has no criminal history as stated in para 30 of the affidavit and is in jail since 03.12.2020. Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is the husband of the deceased. It is undisputed that the applicant was living in the same house where his wife died. It is further argued that as per the postmortem examination report, the deceased was found to have received ante-mortem injury around her neck without any gap and the hyoid bone was fractured and the doctor has opined the cause of death of the deceased is asphyxia as a result of strangulation. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is the husband of the deceased. The cause of death of the deceased is asphyxia as a result of strangulation. There is a ligature mark around her neck without any gap with the hyoid bone fractured. The undisputed fact is that the applicant is living in the same house for which there is no explanation for the same as to why his wife has died. I do not find it a fit case for bail. Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail. The bail application is, accordingly, rejected."