Allahabad High Court
Rahul vs State Of U.P. And 3 Others on 3 May, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:79720 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 12357 of 2024 Applicant :- Rahul Opposite Party :- State Of U.P. And 3 Others Counsel for Applicant :- Abhilasha Singh,Ashutosh Yadav Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Supplementary affidavit filed by the learned counsel for applicant in Court today is taken on record.
Heard Mrs. Abhilasha Singh, the learned counsel for applicant and the learned A.G.A. for State.
This repeat application for bail has been filed by applicant Rahul seeking his enlargement on bail in Case Crime No.132 of 2023, under Sections 498-A 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Bahjoi, district Sambhal, during the pendency of trial i.e. Sessions Trial No.183 of 2023 (State Vs. Rahul), under Sections 498-A 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Bahjoi, district Sambhal, now pending in the Court of Additional & Sessions Judge, Sambhal at Chandausi.
Perused the record.
The first bail application of applicant was rejected by this Court by a detailed order dated 11.10.2023 passed in Criminal Misc. Bail Application No.36169 of 2023 (Rahul Vs. State of U.P.). For ready reference, the order dated is reproduced herein-below :
"Heard Mr. Manish Pandey, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This application for bail has been filed by applicant Rahul seeking his enlargement on bail in Case Crime No. 132 of 2022, under Sections 498A, 304B, and 3/4 D.P. Act, Police Staiton- Behjoi, District Sambhal during the pendency of trial.
It transpires from record that marriage of son of applicant was solemnized with Jyoti on 25.11.2021. However, just after expiry of a period of one year and three months and 27 days, from the date of marriage of applicant an unfortunate incident occurred on 24.3.2023, in which the wife of applicant namely, Jyoti died as she committed suicide by hanging herself.
It is the case of applicant that the information regarding aforesaid occurrence was given by the brother of the applicant namely, Ran Pratap Singh at the concerned Police Station. On the aforesaid information, the inquest (panchayatnama) of the deceased was conducted. In the opinion of the witnesses of inquest (panch witness), the nature of death of deceased was characterized as homicidal and the cause of death of deceased was said to be hanging.
After the proceedings of inquest had been undertaken, a belated F.I.R. dated 25.3.2023 was lodged by first informant namely, Sushil Kumar father of deceased and was registred as Case Crime No. 132 of 2022, under Sections 498A, 304B, and 3/4 D.P. Act, Police Staiton- Behjoi, District Sambhal. In the aforesaid F.I.R. four persons namely, Rahul (applicant herein), Mahendra, Bhuri and Rajat, have been nominated as named accused.
After aforementioned F.I.R. was lodged, post mortem of the body was conducted on 25.3.2023. The autopsy surgeon who conducted autopsy of the body of deceased opined that cause of death of deceased was Asphyxia as a result of ante mortem hanging. The autopsy surgeon found following ante-mortem injuries on the body of deceased:
1.5 x 24 cm ligature mark present on the neck 4 cm below the Rt. ear 5 cm below the left ear 7 cm below the chin. 3 cm gap present in ligature mark, on the back side of neck.
During course of investigation, Investigating Officer examined first informant and others 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 Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is also established in the crime in question. He, accordingly submitted the charge sheet dated 15.5.2023, whereby all the named accused have been charge sheeted under sections 498A, 304B, and 3/4 D.P. Act.
Learned counsel for applicant submits that though the applicant is husband of deceased, a named and charge sheeted accused yet he is liable to be enlarged on bail. It is next contended that the deceased was a short tempered lady. She has taken an extreme step of terminating his life by committing suicide. Bonafide of the applicant is explicit from the fact that the autopsy surgeon who conducted autopsy of the body of the deceased did not find any external or internal injury on the body of deceased, except the ligature mark. Moreover, the information regarding aforesaid incident was given by cousin brother of the applicant at concerned Police Station. The proceedings of the inquest was conducted on the said information. Attention of the Court was then invited to the F.I.R. On the basis of above, he submits taht allegation made in F.I.R. regarding commission of criminlity upon the deceased on account of non-fulfilment of additional demand of dowry are vagure and balled allegations inasmuch as the same are devoid of material particulars. The said allgation are devoid of material particulars. No attempts has been made by the first informant to explain the same in his statement under section 161 Cr.P.C. Referring to the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, he submits that aforesaid allegations are liable to be ignored by this Court at this stage.
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 27.3.2023. As such, he has undergone more than six months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. Up to this stage no such circumstance has emerged, necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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 since applicant is the husband of the deceased a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. Marriage of applicant was solemnized with deceased on 25.11.2021. The occurrence giving rise to present criminal proceedings occurred on 24.3.2023, As such, the death of the deceased has occurred within seven years of marriage and at her marital home. Consequently, the death of the deceased is a dowry death. Moreover the death of the deceased is highly unnatural. Learned A.G.A. thus submits that in view of above burden is upon the applicant to not only explain the manner of occurrence under Section 106 but also his innocence under section 113 of the Evidence Act. However, the applicant has miserably failed to discharge the aforesaid burden up to this stage. There is nothing on record on the basis of which innocence of the applicant can be inferred. He, therefore, contends that no sympathy be shown by this Court in favour of applicant.
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, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that the submissions urged by learned the A.G.A. in opposition to the present application, could not be dislodged by learned counsel for applicant, therefore, irrespective of the submissions urged by the learned counsel for applicant A.G.A. in support of the present application for bail, the clean antecedents of applicant, the period of incarceration undergone but without making any comment on the merits of the case, this Court does not find good ground to enlarge the applicant on bail.
In view of above, the bail application fails and is liable to be rejected.
It is accordingly rejected."
Learned counsel for the applicant submits that subsequent to the order dated 11.10.2023, the trial of the applicant has commenced before the court below. Up to this stage, only one prosecution witness i.e. Sushil Kumar (first informant/father of the deceased) has deposed before the court below as PW-1. Drawing a parallel in between the first information report and the deposition of aforementioned witness, the learned counsel for applicant contends that in the first information report only vague and bald allegations regarding demand of dowry have been made. The first information report further records that since additional demand of dowry was not fulfilled, cruelty was committed upon the daughter of the first informant. However, in the deposition before the court below, PW-1 Sushil Kumar has come up with a case that demand of a four wheeler Bolero was raised and since the said demand was not fulfilled, the daughter of first informant was subjected to mental and physical cruelty. Referring to the judgement of the Apex Court in Kahkashan Kausar @ Sonam & others Vs. State of Bihar (2022) 6 SCC 599 the learned counsel for applicant contends that even in his deposition before the court below PW-1-Sushil Kumar (who is also father of the deceased) has not disclosed as to in what manner the demand of dowry was made and what cruelty was committed upon the deceased. On the above premise, she therefore contends that applicant is liable to be enlarged on bail. According to the learned counsel for applicant, prima facie, the death of the deceased is a suicidal death and not due to any deliberate act of applicant. In the aforesaid circumstance, in case applicant is convicted he is not liable to be sentenced more than seven years of imprisonment. The applicant is in jail since 27.03.2023. As such, he has undergone more than one year and one month of incarceration. There is no likelihood of the trial getting concluded in near future.
Even otherwise, applicant is a man of clean antecedents having no criminal history to his 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. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of 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 vehemently opposed the prayer for bail. He submits that since applicant is the husband of the deceased a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
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, complicity of the accused, accusation made and coupled with the fact that though applicant is the husband of deceased yet he is liable to be enlarged on bail, inasmuch as, prima facie, the death of the deceased is a suicidal death and not homicidal, the bona fide of the applicant is explicit from the fact that no external ante-mortem injury was found on the body of deceased by the autopsy surgeon, considering the nature of death of the deceased the applicant is not liable to be awarded the maximum sentence under Section 304-B IPC in case he is convicted, applicant is in jail since 27.03.2023 as such he has undergone one year and one month of incarceration, though the trial of applicant has commenced before the court below yet, up to this stage, only one prosecution witness has deposed before the court below, the deposition of PW-1 Sushil Kumar (first informant/father of the deceased) does not establish the test laid down by the Apex Court in Kahkashan Kausar @ Sonam & others (supra), even in his deposition before the court below PW-1-Sushil Kumar (who is also father of the deceased) has not disclosed as to in what manner the demand of dowry was made and what cruelty was committed upon the deceased therefore, the aforesaid allegations are prima facie liable to be ignored by this Court at this stage, the police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted as such the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized, yet in spite of above the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the proceeding of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5), the clean antecedents of applicant, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail 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 Rahul, 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 :- 3.5.2024.
Rks.