High Court
Case Details
Neutral Citation No. - 2023:AHC:135644 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 26910 of 2023 Applicant :- Devendra Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Shishir Tandon Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Legal Reasoning
Heard Mr. Shishir Tondon, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Devendra Kumar, seeking his enlargement on bail in Case Crime No. 173 of 2022, under sections 498A, 304B, 323 IPC, and Section 3/4 D.P. Act, Police Station- Seohara, District Bijnor, during the pendency of trial. Record shows that marriage of applicant Devendra Kumar was solemnized with Aruna on 6.12.2021 under the scheme known as Chief Minster Mass Marriage Scheme. However, in the F.I.R. date of marriage of applicant is wrongly mentioned as 29.4.2021. However, just after expiry of a period of more than one year and four months from the date of marriage of applicant, an unfortunate incident occurred on 13.4.2022, in which Aruna the wife of applicant 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 Bhopal Singh, father of deceased. Subsequently, father of the deceased lodged an F.I.R. dated 13.4.2022 which was registered as Case Crime No. 173 of 2022, under sections 498A, 304B, 323 IPC, and Section 3/4 D.P. Act, Police Station- Seohara, District Bijnor. In the aforesaid F.I.R. six persons namely, Krishnapal Singh, Devendra Kumar, Rajesh Kumar, Pritam Singh, Manoj Kumari and Shanti have been nominated as named accused. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of daughter of first informant was solemnized on 20.4.2021 with applicant. At the time of marriage, sufficient amount of goods and dowry was given. However, applicant and other family members were dissatisfied with same, Additional demand of dowry to the tune of Rs. 10,00,000/- was made. As the additional demand of dowry was not fulfilled, physical and mental cruelty was committed upon the daughter of first informant. Ultimately, the daughter of first informant was put to death. Subsequent to above F.I.R, the inquest of the body of the deceased was conducted on 13.4.2022. In the opinion of the witness of inquest (panch witnesses), the nature of death of deceased was suicidal. Thereafter the post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon the cause of death of deceased was Asphyxia as a result of anti-mortem hanging. The autopsy surgeon found following anti-mortem injuries on the body of deceased: (1) Incomplete Ligature mark with Rough surface seen around neck in front and both side of neck between chin and above hyoid bone. Total neck circumference - 30 cm. Ligature mark size- 2.5 x 2.0 cm Mark below Lt. ear- 3.0 cm Mark below Rt. ear- 5.0 cm On cut section of Blood seen in subcutaneous tissue underneath. (2) T.S.- 13 x 8 cm Rt. face with face head (3) I.W.- Lt. Little finger bone 3 x 1.5 cm During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. Witnesses so examined have supported the F.I.R. On the basis of above and other material collected by him during course of investigation, he came to the conclusion that complicity of three of the named accused namely, father-in-law, mother-in-law and applicant is established in crime in question. Accordingly Investigating Officer submitted the charge sheet dated 11.6.2022 Learned counsel for applicant contends that even though applicant is husband of deceased, and a named and charge sheeted accused but he is innocent. Referring to the post mortem report of the deceased he submits that bonafide of applicant is established from the fact that except from the ligature mark, no other internal or external anti-mortem injury was found on the body of deceased. The deceased was a short tempered lady and she has taken the extreme step of terminating her life by committing suicide. Referring to the material on record, he contends that the allegations made in F.I.R. regarding the demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non fulfillment of additional demand of dowry are vague, as the same are devoid of material particulars. Referring to the judgement of supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599. he submits that the allegations made with regard to demand of additional dowry and commission of physical and mental cruelty, upon deceased on account of non fulfillment of additional dowry are liable to be ignored. Up to this stage, no such circumstance has emerged on the basis of which it can be definetely inferred that deceased had committed suicide, on account of an immediate act of applicant. No abetement, instigation, or conspiracy against the applicant can be inferred against the applicant either. To buttress his submission, he has relied upon following judgments: (i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163. (ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737. (iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251. (iv). Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387. It is lastly submitted that applicant is a man of clean antecedents, inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 18.4.2022. As such, he has undergone more than two years of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, there is no such incriminating circumstance necessitating the custodial arrest of applicant during the course of trial. To lend legal support to his submission he has referred to the judgement of the Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373 (paragraph 5). He, therefore submits that applicant are liable to be enlarged on bail. In case the applicant is enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Applicant is the husband of the deceased. The occurrence has taken place in the house of applicant and within one year of marriage. As such, burden is upon applicant to explain the manner of occurrence and his innocence. Upto this stage, applicant has failed to dislodge aforesaid burden under sections 106 and 113 B of Evidence Act. As such applicant does not deserve any sympathy of this Court. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as the complicity of applicant and accusation made coupled with the fact that as per the inquest report as well as post mortem report of the deceased the death of deceased is suicidal, the bonafide of the applicant is explicit from the fact that as per the except for the ligature mark, no other internal or external injury was found on the body of deceased, the Police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized, up to this stage, no such incriminating circumstance necessitating the custodial arrest of applicant during the course of trial could be pointed out by learned A.G.A, the judgement of the Supreme Court in Sumit Subhaschandra Gangwal (Supra), allegations made in the F.I.R with regard to demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non fulfilment of dowry are devoid of material particulars, in view of judgement of Supreme Court in Kahkashan Kausar @ Sonam and Others (Supra), prima facie they are liable to be ignored, at this stage, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case applicant has made out a case for bail. Accordingly the bail application is allowed. Let the applicant Devendra Kumar, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC. (iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC. (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 THE HIM/HER 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/her 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 :- 10.7.2023 Arshad Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad