Allahabad High Court
Bitola Pandey vs State Of U.P. on 15 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:88111 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37610 of 2023 Applicant :- Bitola Pandey Opposite Party :- State of U.P. Counsel for Applicant :- Raj Kumar Gautam,Sharad Kumar Srivastava,Vimlesh Gautam Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Raj Kumar Gautam, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant-Bitola Pandey seeking her enlargement on bail in Case Crime No. 96 of 2015, under Sections 498A, 304-B I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Kalyanpur, District- Fatehpur during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 30.04.2015, a delayed FIR dated 02.05.2015 was lodged by first informant-Sunil Kumar Agnihotri (uncle of the deceased) and was registered as Case Crime No. 96 of 2015, under Sections 498A, 326 I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Kalyanpur, District- Fatehpur. In the aforesaid FIR, one person namely Vineet Tiwari (husband of the deceased) has been nominated as solitary named accused.
5. The gravamen of the allegations made in the FIR to the effect that the marriage of the niece of first informant was solemnized with Vineet Tiwari on 27.11.2023 in accordance with Hindu Rites and Customs. Out of the aforesaid wedlock a son was born. The F.I.R. further records that in furtherance of the demand of dowry and a Motorcycle, cruelty was committed upon the niece of the first informant. Ultimately on 30.04.2015, information was given by Vineet Tiwari, the husband of the deceased i.e. Kumkum that his wife has sustained burn injury. Immediately, thereafter the injured was taken to hospital for treatment. While the injured/victim was undergoing treatment her dying declaration was recorded on 02.05.2015. The same is on record at page 28 of the paper book. For ready reference, the same is reproduced hereinunder:-
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6. Ultimately, the victim Kumkum succumbed to the burn injury sustained by her on 02.05.2015. Subsequent to above, the inquest of the deceased was conducted on 25.05.2015. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased could not be categorized as to whether it is homicidal or suicidal. Thereafter, the post mortem of the body of deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased is asphyxia as a result of ante-mortem burn injury. The Autopsy Surgeon found following ante-mortem injuries on the body of deceased:-
"Superficial to deep burn all over body except Scalp and sole pus pocket present at places of the body".
7. Thereafter the Investigating Officer recorded the statement of the first informant and other witnesses under Section 161 Cr.P.C. On the basis of above and other material collected by the Investigating Officer, during course of investigation, he came to the conclusion that complicity of only one of the named accused i.e. Vineet Tiwari is established in the crime in question. He accordingly, submitted the police report in terms of Section 173(2) Cr.P.C., whereby, named accused has been charge sheeted under Sections 498A, 304-B I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Kalyanpur, District- Fatehpur.
8. After submission of charge sheet, cognizance was taken upon same by concerned Magistrate in exercise of jurisdiction under Section 190(1)(b) Cr.P.C. Thereafter the concerned Magistrate in terms of Section 203 Cr.P.C. committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 293 of 2015 (State of U.P. Vs. Vineet Tiwari) came into existence. During the course of aforementioned Sessions Trial, the statement of PW-1 Sunil Kumar first informant/uncle of the deceased and PW-2 Anil Kumar Agnihotri (father of the deceased) were recorded. After the statement-in-chief/examination-in-chief of aforesaid witnesses were recorded, prosecution filed an application under Section 319 Cr.P.C. stating therein that since the complicity of named but not charge sheeted accused is also established in the crime in question as per the deposition of aforesaid witnesses, therefore, they be also summoned to face trial in aforesaid sessions trial. This application came to be allowed by Court below vide order dated 08.07.2022.
9. Learned counsel for applicant contends that applicant is a named accused but she is not charge sheeted. Applicant has been summoned by Court below in exercise of jurisdiction under Section 319 Cr.P.C. The only evidence that has emerged against the applicant is the dying declaration of the deceased which has already been extracted hereinabove. As per the dying declaration no active role was played by the present applicant in immolating the deceased. It is then contended that applicant is a lady, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C. As such, applicant is liable to be enlarged on bail.
10. Even otherwise, applicant is a woman of clean antecedents inasmuch as, she has no criminal history to her credit except the present one. Applicant is in jail since 19.07.2023. As such, she has undergone more than 8 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, it is thus urged that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.
11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is a lady and was exculpated by the Investigating Officer but her complicity in the crime in question is established as per the dying declaration of the deceased as well as the statement of two prosecution witnesses namely PW-1 Sunil Kumar and PW-2 Anil Kumar Agnihotri. Learned A.G.A. further submits that deceased was a young lady who died just after a period of 1 year and 5 months from the date of her marriage. The death of the deceased is highly unnatural. The statement of PW-1 and PW-2 as well as the dying declaration of the deceased clearly implicate the applicant in the crime in question. On the above conspectus, the learned A.G.A. contends that no indulgence be granted by this Court in favour of applicant.
12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that applicant is a lady, therefore, she is entitled to the benefit of provisions contained in proviso to Section 437 Cr.P.C., though applicant is a named accused but she was exculpated in the police report submitted in terms of Section 173(2) Cr.P.C., the applicant has been summoned by Court below to face trial in exercise of jurisdiction under Section 319 Cr.P.C., the primary evidence that has emerged against applicant is the dying declaration of the deceased, however, as per the dying declaration it cannot be concluded that applicant has played an active role in immolating the deceased, inspite of the fact that the charge sheet has been submitted therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the course of trial, the clean antecedents of the applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail.
13. Accordingly, the bail application is Allowed.
14. Let the applicant-Bitola Pandey be released on bail in aforesaid case crime number on her 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.
15. 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 :- 15.5.2024 Imtiyaz