High Court
Case Details
Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31309 of 2022 Applicant :- Suresh Nishad Opposite Party :- State of U.P. Counsel for Applicant :- Arvind Prabodh Dubey Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Arvind Prabodh Dubey, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Suresh Nishad seeking his enlargement on bail in Case Crime No. 388 of 2021, under Sections 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Jhangha, District Gorakhpur, during the pendency of trial. Perused the record. Record shows that marriage of the son of applicant was solemnized on 19.11.2019 with Sandhya in accordance with Hindu Rites and Customs. However, just after expiry of a period of two years from the date of marriage of applicant, an unfortunate incident occurred on 31.10.2021, in which wife of applicant namely Sandhya died as she committed suicide by hanging herself. The information regarding aforesaid incident was not given by applicant or any of his family members at the concerned police station, but by Harish Chandra (father of the deceased). On the aforesaid information, the inquest (panchayatnama) of the body of the deceased was conducted on 1.11.2021. In the opinion of witnesses of inquest (panch witnesses), the nature of death of deceased was characterized as suicidal. The cause of death in the opinion of witnesses of inquest was hanging. Subsequent to above, post-mortem of the body of the deceased was conducted on the same day. The Doctor, who conducted autopsy of the body of the deceased found following ante mortem injuries on her body:- 1. Ligature mortis of size 3.2 cm x 1.5 cm all over neck except lt side ............ on 6 cm. 2. 1.5 cm ligature on cutting endroness present on lt 2 cm. 3. Trachea co........... Hyoid bone fracture. In the opinion of Autopsy Surgeon, the cause of death of deceased was asphyxia as a result of ante mortem injury. After aforesaid proceedings had been undertaken, first informant (father of the deceased) lodged a delayed F.I.R. dated 1.11.2021 which was registered as Case Crime No. 388 of 2021, under Sections 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Jhangha, District Gorakhpur. In the aforesaid F.I.R. six persons namely Suresh (husband), Siri (father-in-law), Manju (sister-in- law), Urmila (nand), Meena (nand) and Reeta (nand) of the deceased have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that sufficient amount of goods and dowry detailed in the F.I.R. were given at the time of marriage of daughter of first informant. However after expiry of a period of one month from the date of marriage of the daughter of first informant, demand of additional dowry by way of a motorcycle was raised. As aforesaid demand of additional demand was not fulfilled, physical and mental cruelty is alleged to have been committed upon the daughter of first informant. Ultimately, on 31.10.2021, daughter of first informant was put to death After lodging of aforementioned F.I.R. statutory investigation of concerned case crime number commenced. Investigating Officer examined first informant Harish Chandra (father of the deceased) and other witnesses under Section 161 Cr. P. C. who have supported the F.I.R. On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of only two of the named i.e. accused applicant Suresh Nishad (husband) and Siri (father-in-law) of the deceased is established. He, accordingly, submitted the charge sheet dated 9.2.2022, whereby aforementioned two named accused have been charge sheeted under Sections 498A, 304 B IPC and Sections 3/4 D.P. Act, whereas other named accused have been exculpated. Learned counsel for applicant submits that applicant is the husband of the deceased as well as a named and charge sheeted accused, but he is innocent. The deceased was a short tempered lady and has taken the extreme step of committing suicide by hanging herself. In support of above, he has invited the attention of the Court to the inquest report of the deceased, wherein a recital is contained that the deceased, who was hanging was retrieved by the applicant. It is then contended that the bona fide of the applicant is also explicit from the fact that except for the incomplete ligature mark, no other external or internal ante mortem injury was found on the body of the deceased. Upto this stage, Investigating Officer has not collected any such evidence, on the basis of which it can be definitely concluded that applicant has abetted or instigated in the commission of the alleged crime. Allegations made in the F.I.R. with regard to the additional demand of dowry and commission of physical/mental cruelty upon deceased on account of non fulfilment of the alleged demand of dowry are vague and concocted inasmuch as they are devoid of material particulars. Referring to the judgement of Supreme Court Kahkashan Kausar Vs. State of Bihar, (2022) 6 SCC 599 wherein it has held that in the absence of material particulars in respect of allegations regarding demand of dowry commission of physical and mental cruelty, same are liable to be ignored. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 23.11.2021. As such, he has undergone almost 1 year and 1 month of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. The charge sheet having already been submitted, the evidence sought to be relied upon by the prosecution against applicant stands crystallized. As such, custodial arrest of the applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, learned counsel for applicant vehemently submits that applicant is liable to be enlarged on bail. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since the applicant is husband of the deceased a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The death of the deceased has occurred within seven years of marriage and therefore by virtue of the provisions contained in Section 113 B of the Evidence Act, it shall be presumed as a dowry death. However, upto this stage, applicant has failed to rebut aforesaid statutory presumption. As the occurrence has taken place inside the house of applicant, therefore, applicant being an inmate of the house is under burden to explain the manner of occurrence by virtue of Section 106 of the Evidence Act. However, the said burden has also not been discharged upto this stage. Deceased was a young lady aged about 24 years, who has died in mysterious and suspicious circumstances. In view of above, applicant does not deserve any sympathy by this Court. Having heard the learned counsel for applicant, the learned A.G.A. for state, learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the bona fide of the applicant is explicit from the fact that except for the ante mortem injury, there is no external/internal ante mortem injury on the body of the deceased, the allegations made in the F.I.R. regarding demand of dowry and commission of physical and mental cruelty upon deceased being devoid of material particulars, the charge sheet having been submitted, the period of incarceration undergone by the applicant and the clean antecedents of the applicant, but without expressing any opinion on the merits of the case, the applicant has made out a case for bail. Accordingly, the bail application is allowed. Let the applicant Suresh Nishad involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice :- (i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law. (ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.. (iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under section 174-A I.P.C. (iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law. (v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above. Order Date :- 21.12.2022 HSM Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad