Allahabad High Court
Abhishek Dubey vs State Of U.P. on 9 July, 2021
Author: Rajeev Singh
Bench: Rajeev Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH ?Court No. - 11 Case :- BAIL No. - 5269 of 2021 Applicant :- Abhishek Dubey Opposite Party :- State of U.P. Counsel for Applicant :- Arun Sinha,Indrajeet Shukla,Siddhartha Sinha Counsel for Opposite Party :- G.A. Hon'ble Rajeev Singh,J.
The Court convened through video conferencing.
Heard Shri Arun Sinha, learned Senior Counsel assisted by Shri Siddhartha Sinha, learned counsel for the applicant, Shri Ranvijay Singh, learned A.G.A. for the State and Shri Indrajeet Shukla, learned counsel appearing for the complainant.
The present bail application has been filed by the applicant in F.I.R. No. 33 of 2021, under Sections 498-A, 302, 120-B IPC and 3/4 D.P. Act, Police Station Kotwali Nagar, District Gonda with the prayer to enlarge him on bail.
Facts, in short, are that the brother of the applicant, namely, Prashant Dubey was married with the sister of the complainant (deceased) in the year 2012 and out of their wedlock, one child was born, who is now aged about 8 years. On the written complaint filed by the informant, F.I.R. No. 33 of 2021 (supra) was lodged with the allegation that husband of the deceased and other family members were harassing his sister with regard to demand of dowry, for which, a numbers of times, panchayat was also called for resolving the issue. On the date of incident, i.e., on 10.01.2021, at about 4 p.m., he received information about the death of his sister, on which, he along with his wife, reached to the place of incident and saw that body of his sister was in two parts and the head was lying adjacent to the body. He also saw injuries of sharp weapon on the face of the deceased. The informant further alleged in the F.I.R. that all the family members, including the applicant and some unknown companion killed his sister in a planned manner.
Learned counsel for the applicant submits that the applicant, who is a teacher by profession, is innocent person and has been falsely implicated in the case. The applicant is having no previous criminal history and is in jail since 11.01.2021.
Learned counsel for the applicant submits that the relations between the brother of the applicant and his wife were not cordial. It is further submitted that the name of the applicant has falsely been impliacted in the case, as on the date of incident, applicant along with his father went to attend a ?Terahvi? ceremony at Village Banjariya Jheelahi, P.S. Mankapur, Gonda, which is 24 kms. away from the place of incident and remained there in between 12 noon to 5 p.m. It is also submitted that when the applicant came back, he saw that deceased was beheaded. Thereafter, family members of the deceased also came there and on the written complaint of the informant, F.I.R. No. 33 of 2021 (supra) was filed. Learned counsel for the applicant submits that after inquest, body was sent for post mortem and, according to the post mortem report, 8 anti mortem injuries are found. Statements of the informant and other persons, including the daughter of the deceased, were recorded by the Investigating Officer.
Learned counsel for the applicant next submits that the informant, in his first statement recorded under Section 161 Cr.P.C., reiterated the facts as mentioned in the F.I.R. However, in his mazeed statement, informant categorically stated that applicant and his father were somewhere else at the time of incident. During the course of investigation, affidavits were given by the persons, who were present at the ?Teharvi? ceremony, namely, Umakant Upadhyaya, Chandra Shekhar Upadhyaya, Arun Kumar Upadhyaya, whose statements were recorded by the Investigating Officer along with Suresh Chandra Upadhyaya (who organised the ceremony for his father), in which they categorically stated that the applicant and his father were present in the ?Teharvi? ceremony. Learned counsel for the applicant further submits that the daughter of the deceased, in her statement, also stated that her mother was victimised by her father.
Statement of the wife of the informant, namely, Saroj Tripathi (Bhabhi) of the deceased was recorded after about one month from the date of incident, wherein she stated that after information, she immediately went to the place of incident along with her husband and at the same time, applicant and his father also came. Mother-in-law and sister-in-law of the deceased were already inside the house. She also stated, in her statement that she also saw blood stains on the clothes of the applicant and his wife. Submission of the learned counsel for the applicant is that it is highly improbable that when she saw that blood stains were on the clothes of the applicant and his wife, then why this information was not given immediately to the police. It is also submitted that other relatives of the deceased also reached on the spot, but no one has stated that any blood stains were found on the clothes of the applicant, however, they stated that applicant and his wife also support the husband of the deceased in her victimisation. It is vehemently submitted that no one has stated that the deceased was killed by the applicant. He also submits that weapon ?banka? was recovered on the pointing out of the brother of the applicant.
Investigating Officer conducted a detail investigation and came to the conclusion that the deceased was being victimised by her husband, but no evidence against Krishan Dev Dubey and Shushma Dubey was found, therefore, their names were deleted. It is further observed that on the basis of the statement of the witnesses, no evidence was found against the applicant in the involvement of the incident. The only fact, which came into the knowledge of the Investigating Officer is that the applicant and his wife were well known about the victimisation of the deceased by her husband, but they did not make any effort to protect her and, therefore, Investigating Officer came to the conclusion that the applicant and his wife are accused of conspiracy. It is lastly submitted that charge sheet was filed in the month of February, 2021 and there is no possibility of tampering of any evidence. In such circumstances, applicant is entitled for bail.
Learned A.G.A. as well as learned counsel for the complainant vehemently oppose the prayer of the applicant.
Learned counsel for the complainant submits that applicant was well known about the victimisation of the deceased, but he did not make any effort to protect her. He further submits that Investigating Officer has given favour to the accused persons and the applicant had participated in the crime, actively by helping his brother. He also submits that deceased was decapitated. Seven other injuries were also found on the body. He also submits that there was no question for recording mazeed statement of the informant, when he already reiterated the story as mentioned in the F.I.R. He next submits that the Investigating Officer recorded the mazeed statement of the informant, on his own, in which, it is allegedly mentioned that the informant stated that at time of incident, applicant and his father were somewhere else. He vehemently submits that though in the statement of the sister-in-law (Bhabhi) of the deceased, Saroj Tripathi, she stated that when she reached at the place of incident, applicant and is his father also reached there and blood stains were present on the clothes of the applicant and his wife, but the Investigating Officer did not deliberately collect the clothes of the applicant and his wife.
However, learned A.G.A. as well as learned counsel for the complainant do not dispute that the statement of the Bhabhi of the deceased was recorded after one month and this fact was not stated by any other witness, who reached at the place of incident. They also do not dispute this fact that the daughter of the deceased made allegations against her father.
Considering the arguments of the learned counsel for the parties and going through the record, it is evident that after detail investigation, Investigating Officer came to the conclusion that no evidence in relation to the involvement of the applicant in the crime was found, however, he was fully aware about the victimisation by his brother, but he never made any attempt to protect the deceased, therefore, the allegations against the applicant is only upto conspiracy.
In view of above, I am of the view that the applicant is entitled to be released on bail.
Let applicant - Abhishek Dubey be released on bail in F.I.R. No. 33 of 2021, under Sections 498-A, 302, 120-B IPC and 3/4 D.P. Act, Police Station Kotwali Nagar, District Gonda, on his furnishing personal bond of Rs.1 lac and two reliable sureties of the equal amount, subject to following conditions:-
(1) Applicant will not try to influence the witnesses or tamper with the evidence of the case or otherwise misuse the liberty of bail.
(2) Applicant will fully cooperate in expeditious disposal of the case and shall not seek any adjournment on the dates fixed for evidence when witnesses are present in the Court.
(3) Applicant shall remain present, in person, before the trial court on the dates fixed for (a) opening of the case, (b) framing of charge; and (c) recording of statement under Section 313 Cr.P.C.
(4) The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by it alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked, before the concerned Court/Authority/Official.
(5) The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Any violation of above conditions will be treated misuse of bail and learned Court below will be at liberty to pass appropriate order in the matter regarding cancellation of bail.
However, the court below is directed to conclude the trial, expeditiously, preferably within a period of one year from today, without granting any unnecessary adjournment to any party, and if adjournment is inevitable that may be subject to heavy cost and for short dates.
Order Date :- 9.7.2021 VKS