Allahabad High Court
Arif vs State Of U.P. on 23 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:93494 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6784 of 2024 Applicant :- Arif Opposite Party :- State of U.P. Counsel for Applicant :- Shams Uz Zaman Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Shams Uz Zaman, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Arif seeking his enlargement on bail in Case Crime No. 511 of 2020 under Sections 498A. 304B, 302. 323, 504, 506 I.P.C. and Sections 3/4 D.P. Act, Police Station-Loni , District-Ghaziabad, during the pendency of trial.
4. The first bail application of applicant was rejected by this Court by a detailed order dated 20.12.2022 passed in Criminal Misc. Bail Application No. 22085 of 2022 (Arif Vs. State of U.P.). For ready reference, the said order is reproduced herein under:
"Heard Mr. P.C. Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed applicant Ramveer @ Ramnivas seeking his enlargement on bail in Case Crime No. 811 of 2020, under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act, Police Station- Loni, District Ghaziabad during the pendency of trial.
Perused the record.
Record shows that marriage of applicant Arif was solemnized with Riyaz @ Arifa on 21.10.2018 (wrongly mentioned as 21.11.2018 in the body of F.I.R.). From the aforesaid wedlock, no issue was born. After expiry of a period of two years from the date of marriage of applicant, an unfortunate incident occurred on 28.1.2020, in which wife of applicant namely, Riyaz @ Arifa died. The information regarding aforesaid incident at the concerned Police Station was not given by applicant or any of the family members of applicant but by an unknown person on telephone. On the aforesaid information, the inquest (panchayatnama) of the deceased was conducted on the next day i.e. 29.9.2020. In the opinion of the witnesses of inquest (panch witnesses) the nature of death of deceased was characterized as homicidal. Thereafter an F.I.R. dated 29.9.2020 was lodged by Mustafa Khan (father of deceased) and was registered as as Case Crime No. 811 of 2020, under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act, Police Station- Loni, District Ghaziabad. In the aforesaid F.I.R. seven persons namely, Arif (husband), Momina (mother-in-law), Saleem (father-in-law), Slam (Jeth), Kallu (Jeth), Kamarjahan, Abdullah have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that the marriage of daughter of first informant was solemnized with applicant on 21.11.2018. At the time of marriage sufficient amount of goods were given. However, in-laws of daughter of first informant was dissatisfied with the same. Additional demand of dowry by way of Creta Car was made. As the additional demand of dowry was not fulfilled, physical and mental cruelty was committed upon deceased by her in-laws. Ultimately, daughter of first informant was put to death.
After lodging of aforesaid F.I.R., post mortem of the body of deceased was conducted on 29.9.2020 itself. The Doctor who conducted autopsy on the body of deceased found following ante-mortem injuries on her body:
" Multiple abraded contusion int he area of size 15 x 11.0 cm on front of nect below chin Rt. Clavicle area extending from chin to Rt. clavicle area in numbers."
In the opinion of autopsy surgeon, the cause of death of deceased was asphyxia as a result of throttling.
During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. who have also supported the F.I.R. Subsequently, Investigating Officer added section 302 IPC in the aforesaid case crime number.
On the basis of above and other material collected by Investigating Officer during course of investigation upto this stage, which is substantially adverse to applicant, he opined to submit charge sheet. Accordingly Investigating Officer submitted the charge sheet dated 21.12.2021, whereby 3 of the named accused i.e. Arif Husband, Saleem, father in law and Momina (mother-in-law) of deceased have been charge-sheeted under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act. The investigation in respect of other accused is said to be pending.
Learned counsel for applicant submits that though the applicant is husband of the deceased and a named as well as charge sheeted accused, but he is innocent. It is next contended that applicant was not present at the time of occurrence and therefore, he cannot be held to be responsible for the crime in question. 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 2.10.2021. As such, he has undergone more than one year and one 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.
Per contra, the learned A.G.A has opposed this application. He submits that deceased was a young girl aged about 30 years who has died in mysterious circumstances. The death of deceased has occurred within seven years of marriage and therefore, by virtue of statutory presumption contemplated under section 113B of Evidence Act, the death of deceased shall be classified as dowry death. However, up to this stage, applicant has failed to rebut the statutory presumption. It is thus submitted that occurrence has occurred in the house of applicant. Burden is upon the applicant to explain the manner of occurrence. However, aforesaid burden has not been discharged by applicant up to this stage. Plea of alibi raised by applicant is subject to trial evidence. As such applicant does not deserve any indulgence by this Court.
When confronted with above, learned counsel for applicant could not overcome the same.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that applicant is husband of deceased, the death of deceased has occurred within seven years of marriage, the occurrence has taken place in the house of applicant, neither the statutory presumption has been rebutted nor the burden in terms of Section 106 of Indian Evidence Act has been discharged, the medical evidence clearly supporting the death of deceased had occurred on account of deliberate act of named/charge- sheeted accused, but without making any comments on the merits of the case, this Court does not find good ground to enlarge the applicant on bail.
In view of above, the present application fails and is liable to be rejected It is accordingly rejected.
Order Date :- 20.12.2022 "
5. Thereafter applicant-Arif filed repeat application for bail, which also came to be rejected vide order dated 19.11.2023 passed in Criminal Misc. Bail Application No. 40119 of 2023 (Arif Vs. State of U.P.). For ready reference, the order dated 19.11.2023 is extracted herein-under:
"1. Heard Mr. V.P. Srivastava, the learned Senior Counsel assisted by Mr. Mohd. Shahibe Alam Khan, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This repeat application for bail has been filed by applicant-Arif seeking his enlargement on bail in Case Crime No. 811 of 2020, under Sections 498-A, 304-B, 302, 323, 504, 506 IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Loni, District-Ghaziabad during the pendency of trial i.e. Sessions Trial No. 31 of 2021 (State Vs. Arif and Others), under Sections 498-A, 304-B, 323, 504, 506 IPC, Police Station-Loni, District-Ghaziabad now pending in the Court of Additional District and Sessions Judge, Court No.-7, Ghaziabad.
4. The first bail application of applicant was rejected by this Court by a detailed order dated 20.12.2022 passed in Criminal Misc. Bail Application No. 22085 of 2022 (Arif Vs. State of U.P.). For ready reference, the order dated 20.12.2022 is reproduced hereinunder:-
"Heard Mr. P.C. Srivastava, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed applicant Ramveer @ Ramnivas seeking his enlargement on bail in Case Crime No. 811 of 2020, under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act, Police Station- Loni, District Ghaziabad during the pendency of trial.
Perused the record.
Record shows that marriage of applicant Arif was solemnized with Riyaz @ Arifa on 21.10.2018 (wrongly mentioned as 21.11.2018 in the body of F.I.R.). From the aforesaid wedlock, no issue was born. After expiry of a period of two years from the date of marriage of applicant, an unfortunate incident occurred on 28.1.2020, in which wife of applicant namely, Riyaz @ Arifa died. The information regarding aforesaid incident at the concerned Police Station was not given by applicant or any of the family members of applicant but by an unknown person on telephone. On the aforesaid information, the inquest (panchayatnama) of the deceased was conducted on the next day i.e. 29.9.2020. In the opinion of the witnesses of inquest (panch witnesses) the nature of death of deceased was characterized as homicidal. Thereafter an F.I.R. dated 29.9.2020 was lodged by Mustafa Khan (father of deceased) and was registered as as Case Crime No. 811 of 2020, under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act, Police Station- Loni, District Ghaziabad. In the aforesaid F.I.R. seven persons namely, Arif (husband), Momina (mother-in-law), Saleem (father-in-law), Slam (Jeth), Kallu (Jeth), Kamarjahan, Abdullah have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that the marriage of daughter of first informant was solemnized with applicant on 21.11.2018. At the time of marriage sufficient amount of goods were given. However, in-laws of daughter of first informant was dissatisfied with the same. Additional demand of dowry by way of Creta Car was made. As the additional demand of dowry was not fulfilled, physical and mental cruelty was committed upon deceased by her in-laws. Ultimately, daughter of first informant was put to death.
After lodging of aforesaid F.I.R., post mortem of the body of deceased was conducted on 29.9.2020 itself. The Doctor who conducted autopsy on the body of deceased found following ante-mortem injuries on her body:
" Multiple abraded contusion int he area of size 15 x 11.0 cm on front of nect below chin Rt. Clavicle area extending from chin to Rt. clavicle area in numbers."
In the opinion of autopsy surgeon, the cause of death of deceased was asphyxia as a result of throttling.
During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. who have also supported the F.I.R. Subsequently, Investigating Officer added section 302 IPC in the aforesaid case crime number.
On the basis of above and other material collected by Investigating Officer during course of investigation upto this stage, which is substantially adverse to applicant, he opined to submit charge sheet. Accordingly Investigating Officer submitted the charge sheet dated 21.12.2021, whereby 3 of the named accused i.e. Arif Husband, Saleem, father in law and Momina (mother-in-law) of deceased have been charge-sheeted under sections 498A, 304B, 302, 323, 504, 506 IPC, and 3/4 D.P. Act. The investigation in respect of other accused is said to be pending.
Learned counsel for applicant submits that though the applicant is husband of the deceased and a named as well as charge sheeted accused, but he is innocent. It is next contended that applicant was not present at the time of occurrence and therefore, he cannot be held to be responsible for the crime in question. 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 2.10.2021. As such, he has undergone more than one year and one 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.
Per contra, the learned A.G.A has opposed this application. He submits that deceased was a young girl aged about 30 years who has died in mysterious circumstances. The death of deceased has occurred within seven years of marriage and therefore, by virtue of statutory presumption contemplated under section 113B of Evidence Act, the death of deceased shall be classified as dowry death. However, up to this stage, applicant has failed to rebut the statutory presumption. It is thus submitted that occurrence has occurred in the house of applicant. Burden is upon the applicant to explain the manner of occurrence. However, aforesaid burden has not been discharged by applicant up to this stage. Plea of alibi raised by applicant is subject to trial evidence. As such applicant does not deserve any indulgence by this Court.
When confronted with above, learned counsel for applicant could not overcome the same.
Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, as well as complicity of applicant, accusation made coupled with the fact that applicant is husband of deceased, the death of deceased has occurred within seven years of marriage, the occurrence has taken place in the house of applicant, neither the statutory presumption has been rebutted nor the burden in terms of Section 106 of Indian Evidence Act has been discharged, the medical evidence clearly supporting the death of deceased had occurred on account of deliberate act of named/charge- sheeted accused, but without making any comments on the merits of the case, this Court does not find good ground to enlarge the applicant on bail.
In view of above, the present application fails and is liable to be rejected It is accordingly rejected."
5. Mr. V.P. Srivastava, the learned Senior Counsel for applicant submits that though applicant is the husband of deceased, a named and charge sheeted accused and the cause of death of deceased as per the opinion of Autopsy Surgeon is Asphyxia as a result of throttling yet applicant is liable to be enlarged on bail. Applicant is in jail since 02.10.2021. As such, he has undergone more than 2 years and 1 month of incarceration. Up to this stage, the prosecution witnesses of fact and 2 formal witnesses have already been examined by court below. The details of the same are as under:- (i). PW-1 Mustafa Khan, (ii). PW-2 Habiba, (iii). PW-3 Ajay Pathak and (iv). Dr. Rakesh Kumar. He, therefore, submits that since the statement of the prosecution witnesses of fact have already been examined, therefore, the applicant cannot be terrorize the witness nor he can hamper the course of trial. On the cumulative strength of above, he contends that applicant be enlarged on bail.
6. Per contra, the learned A.G.A. has opposed the prayer for bail. He contends that since applicant is a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The death of deceased i.e. wife of applicant has occurred on account of a deliberate act of applicant. The death of deceased has occurred even before expiry of 2 years from the date of marriage of applicant with the deceased. As such, the death of deceased is highly unnatural. Moreover, in view of above, the period of incarceration undergone by the applicant cannot be said to be so sufficient so as to enlarge the applicant on bail. As such, no good or sufficient ground has emerged to enlarge the applicant on bail.
7. When confronted with above, the learned Senior Counsel for applicant could not overcome the same.
8. Having heard, the learned Senior Counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, complicity of accused, accusations made coupled with the fact that the objections raised by the learned A.G.A. in opposition to the present repeat application for bail could not be dislodged by the learned Senior Counsel for applicant, therefore, irrespective of the varied submissions urged by the learned Senior Counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.
9. As a result, present repeat application for bail fails and is liable to be rejected.
10. It is accordingly rejected.
Order Date :- 29.11.2023 "
6. Learned counsel for applicant contends that applicant is in jail since 02.10.2020. Charge sheet has already been submitted against applicant. Even after expiry of a period of three years, the trial of the applicant has not yet concluded. Considering the above, it is thus urged that applicant is liable to be enlarged on bail.
7. 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 custody since 02.10.2020. As such, he has undergone more than three years and seven months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he submits that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is husband of the deceased. As per opinion of autopsy surgeon, the cause of death of deceased is asphyxia as a result of throttling. On the basis of above the learned A.G.A. contends that considering the nature and gravity of offence, the period of incarceration undergone by applicant by itself is not so sufficient so as to enlarge the applicant on bail. He further submits that neither the trial of applicant is proceeding at a snail pace nor there is lackadaisical approach on the part of the prosecution in pursuing the trial. On the above premise, the learned A.G.A. contends that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
10. When confronted with above, the learned counsel for applicant could not overcome the same.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition of this repeat application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present repeat application for bail but without expressing any opinion on the merits of the case, this court finds that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
12. As a result, present repeat application for bail fails and is liable to be rejected.
13. It is accordingly rejected.
Order Date :- 23.5.2024 YK