Allahabad High Court
Upendra Chaurasiya vs State Of U.P. on 26 July, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:119980 Court No. - 64 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 25642 of 2024 Applicant :- Upendra Chaurasiya Opposite Party :- State of U.P. Counsel for Applicant :- Arvind Prabodh Dubey,Ashok Kumar Giri Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
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 Upendra Chaurasiya seeking his enlargement on bail in Case Crime No.166 of 2023, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Ramkola, district Kushinagar, during the pendency of trial i.e. Sessions Trial No.1092 of 2022 (State Vs. Yashoda Devi and Another), under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Ramkola, district Kushinagar now pending in the Court Additional Sessions Judge, Court No.3, Kushinagar at Padrauna.
Perused the record.
Record shows that in respect of an incident which is alleged to have occurred on 23.04.2023, a delayed first information report dated 25.04.2023 was lodged by first informant, namely, Smt. Reena Chaurasia (mother of the deceased) and was registered as Case Crime No.0166 of 2023, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, police station Ramkola, district Kushinagar. In the aforesaid first information report seven persons, namely, Upendra Chaurasia (applicant herein), Ram Dulare, Yashoda, Mamta, Anjali, Bindu and Geeta have been nominated as named accused.
The gravamen of the allegations made in the first information report is to the effect that the marriage of daughter of first informant, namely, Rani Chaurasia was solemnized on 25.11.2020 with Upendra Chaurasia (applicant herein) in accordance with Hindu rites and customs. On account of cohabitation of daughter of first informant and her son-in-law, a female child was born. The first information report further records that all the named accused brutally assaulted the daughter of first informant on 23.04.2023 at around 9.00 P.M. Subsequently, at around 10.30 pm, on the same day i.e. 23.04.2023, an information was given to the parents of the deceased that the daughter of the first informant is unwell.
It is apposite to mention here that prior to the lodging of aforementioned first information report, an inquest (Panchayatnama) of the deceased was conducted. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of the deceased was categorized as homicidal and the cause of death was opined as injuries sustained by the deceased prior to her death. Thereafter, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, who conduced autopsy of the body of deceased, the cause of death of deceased was hemorrhage and shock as a result of ante-mortem injury. The autopsy surgeon found following ante-mortem injuries on the body of deceased :
"Ante-mortem Injuries :-
Lacerated wound 4 cm x 1 cm x bone occipital region 4 cm above vertebra under line. Contusion swelling 7 cm x 5 cm right region 4 cm above right ear. Abrasion 4 cm x 1.5 cm on right side just below right eye. Multiple abrasion 5 cm x 3 cm left below left ear. Abrasion 5 cm x 4 cm left arm 7 cm below left shoulder joint. Abrasion and contusion 6 cm x 5 cm right elbow joint. Abrasion and contusion 6 cm x 5 cm Abrasion 2 cm x 1 cm dorsal aspect hand Abrasion 1 cm x 0.5 cm right leg 3 cm nice joint Abrasion 1 cm x 0.5 cm Abrasion and contusion 16 cm x 7 cm Abrasion 3 cm x 2 cm right sealed."
After aforementioned first information report was lodged, Investigation Officer proceeded with the statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant and other witnesses and recorded their statements under Section 161 CrPC to find out the veracity of the allegations made in the first information report and also the complicity of the named accused in the crime in question. Witnesses so examined have substantially supported the first information report. 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 two of the named accused, namely, Upendra Chaurasia (husband) and Smt. Yasoda (mother-in-law) of the deceased is established in the crime in question. He, accordingly, submitted the police report dated 22.05.2023 in terms of Section 173 (2) CrPC (charge-sheet), whereby aforementioned named accused have been charge-sheeted under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, whereas rest of the named accused were exculpated.
Learned counsel for applicant submits that named and charge-sheeted co-accused Smt. Yashoda has already been enlarged on bail by this Court vide order dated 10.07.2023 passed in Criminal Misc. Bail Application No.29022 of 2023 (Smt. Yashoda Vs. State of U.P.). For ready reference, order dated 10.07.2023 is reproduced herein-under :-
"Heard Mr. Sushil Kumar Mishra, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Smt. Yashoda seeking her enlargement on bail in Case Crime No.166 of 2023, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Ramkola, district Kushinagar, during the pendency of trial.
Perused the record.
It transpires from the record that marriage of Upendra Chaurasia (son of the applicant) was solemnized with Rani Chaurasia (daughter of first informant) on 25.11.2020. However, just after expiry of a period two years five months and few days from the date of marriage of the son of applicant, an unfortunate incident occurred on 24.03.2023 in which daughter-in-law of the applicant, namely, Rani Chaurasia died. The information regarding aforesaid incident at the concerned police station was not given by applicant or any of her family members but by the first informant (mother of the deceased). On the basis of said information, an inquest (Panchayatnama) of the deceased was conducted. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as homicidal. Thereafter, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon the cause of death of the deceased was hemorrhage and shock as a result of ante-mortem injury. The autopsy surgeon found following ante-mortem injuries on the body of the deceased :
"Ante-mortem Injuries :-
Lacerated wound 4 cm x 1 cm x bone occipital region 4 cm above vertebra under line. Contusion swelling 7 cm x 5 cm right region 4 cm above right ear. Abrasion 4 cm x 1.5 cm on right side just below right eye. Multiple abrasion 5 cm x 3 cm left below left ear. Abrasion 5 cm x 4 cm left arm 7 cm below left shoulder joint. Abrasion and contusion 6 cm x 5 cm right elbow joint. Abrasion and contusion 6 cm x 5 cm Abrasion 2 cm x 1 cm dorsal aspect hand Abrasion 1 cm x 0.5 cm right leg 3 cm nice joint Abrasion 1 cm x 0.5 cm Abrasion and contusion 16 cm x 7 cm Abrasion 3 cm x 2 cm right sealed."
After aforesaid proceedings had been undertaken, first informant, namely, Smt. Reena Chaurasia lodged a delayed F.I.R. dated 25.04.2023, which was registered as Case Crime No.0166 of 2023, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Ramkola, district Kushinagar. In the aforesaid first information report seven persons, namely, Upendra Chaurasia, Ram Dulare, Yashoda, Mamta, Anjali, Bindu and Geeta have been nominated as named accused.
The gravamen of the allegations made in the first information report is to the effect that the marriage of daughter of first informant, namely, Rani Chaurasia was solemnized on 25.11.2020 with Upendra Chaurasia in accordance with Hindu rites and customs. Thereafter, the daughter of the first informant came to her matrimonial home. On account of cohabitation of daughter of first informant and her son-in-law, a female child was born. It is further alleged in the F.I.R. that the daughter of the first informant has been killed by some of the named accused on 23.04.2023. Subsequently, at around 10.30 pm, on the same day i.e. 23.04.2023, an information was given to the first informant about death of her daughter due to ill health of her daughter. On this information, first informant reached the matrimonial home of her daughter and found her daughter dead and her body had various injuries.
After completion of investigation, Investigating Officer submitted police report under Section 173 (2) CrPC i.e. charge-sheet. However, during the course of investigation complicity of only two named accused, namely, Upendra Jaiswal (husband of the deceased) and Smt. Yashoda (mother-in-law of the deceased) i.e. applicant herein was found established in the crime in question. Resultantly, it is only these two named accused who have been charge-sheeted, whereas the other named accused have been exonerated.
Learned counsel for the applicant contends that applicant is a named and charge-sheeted accused but she is innocent. He has then invited attention of the Court to the provisions contained in proviso to Section 437 CrPC and on basis thereof he submits that since the applicant is a lady therefore, she is liable to be enlarged on bail. Even otherwise, applicant is a lady of clean antecedents inasmuch as, she has no criminal history to her credit except the present one. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant. To buttress his submission, he has relied upon judgement in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5). The applicant is in custody since 07.05.2023. As such she has undergone more than two months of incarceration. The death of the deceased is an accidental death and not homicidal. In case the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial. On the above premise, the learned counsel for applicant contends that applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the applicant is a named as well as charge-sheeted accused therefore she does not deserve any indulgence by this Court. The death of the deceased is a dowry death. The deceased was a young girl aged about 20 years. The occurrence has taken place while the deceased was staying at her matrimonial home. By virtue of the provisions contained in Section 106 and 113 B of the Evidence Act, the burden is upon the applicant not only to explain the manner of occurrence but also her innocence. The applicant has miserably failed to discharge the said burden. As such no sympathy be shown by this court in favour of applicant.
Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the applicant is a lady, in view of the provisions contained in proviso to Section 437 CrPC applicant is liable to been enlarged on bail, the police report under Section173(2) CrPC has already been submitted, as such the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, learned A.G.A. could not point out any such incriminating circumstance necessitating the custodial arrest of the applicant during the proceedings of trial, the judgement of the Supreme Court in Sumit Subhashchandra Gangwal (supra), but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Smt. Yashoda, involved in aforesaid case crime number, be released on bail on her 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 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 her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under section 229-A I.P.C.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, 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 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 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."
It is then contended that though applicant is husband of the deceased a named/charge-sheeted accused yet he is liable to be enlarged on bail. With reference to the material on record, the learned counsel for applicant contends that death of the deceased is an accidental death and not on account of any deliberate assault committed by the applicant and other charge-sheeted accused. To buttress his submission, he has referred to certain statements which are on record. On the above premise he, therefore, contends that though applicant is the husband of the deceased, a named and charge-sheeted accused yet he is liable to be enlarged on bail.
Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 30.04.2023. As such, he has undergone more than one year and two and half months of incarceration. The police report under Section 173 (2) CrPC 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, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant. He, therefore, contends 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.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the applicant is a named as well as charge-sheeted accused therefore he does not deserve any indulgence by this Court. The death of the deceased is a dowry death inasmuch as the same has occurred within seven years of marriage. The deceased was a young girl aged about 20 years. The death of the deceased is highly unnatural. Referring to the post-mortem report of the deceased, the learned A.G.A. submits that deceased has sustained as many as eleven injuries on her person. There is nothing on record to infer the innocence of applicant at this stage. The occurrence has taken place while the deceased was staying at her matrimonial home. By virtue of the provisions contained in Section 106 and 113 B of the Evidence Act, the burden is upon the applicant not only to explain the manner of occurrence but also his innocence. The applicant has miserably failed to discharge the said burden upto this stage. As such no sympathy be shown by this court in favour of applicant. The trial of the applicant has already commenced. Two prosecution witnesses of fact i.e. PW-1 Reena Chaurasia (first informant-mother of the deceased) and PW-2 Rajan Chaurasia (brother of the deceased) have already deposed before court below. However, they have fully supported the first information report. On the above premise, the learned A.G.A. contends that no good ground is made out to enlarge the applicant on bail.
When confronted with above, the 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, nature and gravity of offence, evidence, accusations made, complicity of the accused and coupled with the fact that the objections raised by the learned A.G.A. in opposition to the present 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 the present application for bail but, without making any comment on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.
As a result, this application for bail thus fails and is liable to be rejected.
It is, accordingly, rejected.
Order Date :- 26.7.2024.
Rks.