Allahabad High Court
Shivam Sharma vs State Of U.P. on 31 January, 2024
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:18569 Court No. - 74 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 48901 of 2023 Applicant :- Shivam Sharma Opposite Party :- State of U.P. Counsel for Applicant :- S.K. Srivastava,A.K. Verma Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
1. List revised.
2. Heard Sri A.K. Verma, learned counsel for the applicant, Sri Ajay Singh, learned AGA-I for the State and perused the material on record.
3. This is the third bail application under Section 439 of Code of Criminal Procedure filed by the applicant Shivam Sharma, seeking enlargement on bail during trial in connection with Case Crime No. 883 of 2020, under Sections 498A, 304B I.P.C. and 3/4 D.P. Act, registered at P.S. Tajganj, District Agra.
4. The first bail application of the applicant being Criminal Misc. Bail Application No. 36762 of 2021 was rejected by this Court vide order dated 15.12.2021 on merits. The second bail application of the applicant being Criminal Misc. Bail Application No. 20003 of 2022 was also rejected by this Court vide order dated 19.9.2022 on merits.
5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case although he is husband of the deceased. While placing paragraph nos. 6 and 7 of the affidavit it is argued that the deceased/Smt. Tanu was ill and suffering from unconsciousness and vomiting and was under treatment. It is further argued that the deceased was suffering from cancer and had a tumor in her brain and therefore she was in a critical position and facing depression due to her illness. It is argued that the deceased was given treatment at a nursing home. Learned counsel for applicant submitted that trial in the present matter has started in which two witnesses namely Smt. Susmita Sharma@Shipu the sister of the deceased, was examined as P.W.-1 and Smt. Renu aunt/chachi of the deceased was examined as P.W.-2 and both the said witnesses have not supported the prosecution case and have been declared hostile. While placing paragraph-27 of the affidavit and annexure no. 11 to the affidavit being the said two statements, the said argument has been raised. Further while placing pragraph-26 of the affidavit, it is argued that Ashok Kumar Sharma the first informant and father of the deceased died on 12.08.2022 and as such he could not be examined. It is argued that charge against the applicant has been framed under Section 498A, 304B I.P.C. and in the alternative under Section 302/34 I.P.C. and 3/4 D.P. Act vide order dated 23.3.2022 by the trial which is at page no.95 of the paper book. While placing the statements of the said two witnesses it is argued that they have stated that the deceased was unwell and was having a tumor and cancer due to which she was quite depressed. It is argued that the applicant is in jail since 10.02.2021 and thus be granted bail.
6. Per contra, learned State counsel opposed the prayer for bail and argued that first two bail applications of the applicant have been rejected on merits by this Court vide order dated 15.12.2021 and 19.9.2022. It is argued that in so far as the fact regarding the deceased having cancer and tumor the same is without any evidence and whatsoever prescription as being relied on behalf of the applicant which is annexure no. 3 and the reports of pathology do not, in any manner, show any tumor in the body of the deceased and also the fact that she was suffering from cancer. It is argued that the said fact is a new fact which has surfaced in the present third bail application. It is argued that the trial in the matter is going on and there is no fresh and new ground taken by the applicant. The deceased died in her matrimonial house after 08 months of marriage. The death is unnatural. The viscera of the deceased was found to contain poison in it. It is argued that the present third bail application of the applicant thus be rejected.
7. After having heard learned counsels for the parties and perusing the records, it is evident that the first bail application of the applicant was rejected by this Court vide order dated 15.12.2021 which reads as under:-
"Heard Sri P.C. Srivastava, learned counsel for the applicant, Sri Manish Yadav, learned counsel for the first informant and Sri Sanjay Kumar Singh, learned counsel for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Shivam Sharma, seeking enlargement on bail during trial in connection with Case Crime No. 883 of 2020, under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, registered at P.S. Tajganj, District Agra.
Learned counsel for the applicant argued that the applicant is the husband of the deceased. It is argued that the deceased had committed suicide and died by consuming poison. The doctor conducting the post-portem examination did not find any bodily injury on her body and as such did not opine regarding the cause of death and preserved the viscera which after analysis was found to contain aluminium phosphide poison. It is argued that even as per the allegations in the the first information report, the story as narrated is of the mother-in-law Smt. Meenu Sharma giving something to the deceased to drink after which she became ill. It is argued that the applicant and his family members tried to make available the medical facilities to the deceased but she could not survive and died. This has been mentioned in the first information report itself which would show that the conduct of the applicant and his family members was above board. It is further argued that the applicant has no criminal history as stated in para 19 of the affidavit and is in jail since 10.02.2021.
Per contra, learned counsel for the first informant and learned counsel for the State opposed the prayer for bail and argued that the applicant is the husband of the deceased. The marriage of the applicant with the deceased Smt. Tanu Sharma was solemnized on 05.04.2020. It is further argued that she died in her maternal house on 10.12.2020 which is after about eight months of her marriage. The death is unnatural. It is argued that there is no reason coming forward from the side of the applicant regarding the reason of committing suicide. It is argued that there is no reason for false implication of the applicant and as such the prayer for bail of the applicant be rejected.
After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is the husband of the deceased and death of the deceased after eight months of marriage in her matrimonial house which is unnatural. The viscera was preserved in which poison has been found. I do not find it a fit case for bail.
Considering the totality of the case in particular, nature of evidence available on record, I am not inclined to release the applicant on bail.
The bail application is, accordingly, rejected."
8. The second bail application of the applicant was rejected by this Court vide order dated 19.9.2022 which reads as under:-
"Heard Sri Sunil Kumar Srivastava, learned counsel for the applicant, Sri S.B. Maurya, learned A.G.A. for the State and perused the material on record.
This is the second bail application under Section 439 of Code of Criminal Procedure filed by the applicant Shivam Sharma, seeking enlargement on bail during trial in connection with Case Crime No. 883 of 2020, under Sections 498A, 304 B I.P.C. and 3/4 D.P. Act, registered at P.S. Tajganj, District Agra.
The first bail application being Criminal Misc. Bail Application No. 36762 of 2021 was rejected by this Court vide order dated 15.12.2021.
Learned counsel for the applicant argued that fresh and new ground in the present matter is that Sanjay Sharma, father-in-law, has been granted bail by a co-ordinate Bench of this Court vide order dated 18.3.2021 passed in Criminal Misc. Bail Application No.10073 of 2021 and further the co-accused Smt. Meenu Sharma has also been granted bail by another co-ordinate Bench of this Court vide order dated 21.6.2021 passed in Criminal Misc. Bail Application No. 8287 of 2021. Copies of the said bail orders are collectively annexed as annexure no. S.A.-1 to the supplementary affidavit dated 15.9.2022. It is argued while placing the order sheet of the trial court which is annexure no. S.A.-2 to the said supplementary affidavit, which is from 5.4.2021 to 18.7.2022, that the trial in the present matter is not proceeding. It is argued that as such the applicant may be enlarged on bail. It is further argued that the doctor without following the proper procedure and without conclusively giving any finding with regard to the cause of death has surreptitiously preserved viscera which was an incorrect act and method done by him. The applicant is having no criminal history as stated in para- 23 and is in jail since 10.2.2021.
Per contra, learned State counsel vehemently opposed the prayer for bail and argued that the first bail application of the applicant was rejected by this Court on 15.12.2021 and the bail of the said co-accused persons were granted prior to rejection of the bail application of the present applicant by this Court. It is further argued that viscera report has come in which Aluminum Phosphide Poison has been recorded. It is further argued that there was no irregularity done by the doctor in collecting sample of viscera as the doctor was not of the opinion with regard to cause of death and as such it is specifically mentioned that the same could not be ascertained and then viscera was preserved. It is argued that no fresh and new ground has been argued which may call for any interference by this Court.
After having heard learned counsels for the parties and perusing the record, it is evident that the co-accused persons were granted bail prior to the rejection of the first bail application of the present applicant. In so far as the procedure of collecting viscera is concerned, prima facie, same appears to be correct and as per the prescribed procedure. More so the same, if is challenged, shall be the subject matter of trial. In so far as the trial is concerned, the order sheet of the case shows that charge against the applicant has been framed vide order dated 23.3.2022 under Sections 498A, 304B I.P.C. in the alternative under sections 302/34 I.P.C. and under Section 3/4 D.P. Act.
Looking to fact and circumstances of the case, this Court does not find any fresh and new ground to release the applicant on bail.
Accordingly, the bail application is rejected."
9. The present third bail application has been filed on the ground of two witnesses not supporting the prosecution case and turning hostile. Although the said two witnesses state of the deceased having some tumor and suffering from cancer but there is no corroboration of the same from any medical records. Even the said fact is new fact pleaded for the first time in the present third bail application. If the deceased was suffering from cancer the applicant could have already taken the said ground earlier. The deceased died within 08 months of her marriage with the applicant. The death is unnatural. The viscera was preserved which after examination was opined vide its report dated 16.2.2021 to contain "Aluminum Phosphide Poison". The trial is under progress and release of the applicant at this stage will not be in the fitness of things.
10. Accordingly, the present third bail application of the applicant is rejected.
(Samit Gopal,J.) Order Date :- 31.1.2024 Naresh