Allahabad High Court
Sartaj vs State Of U.P. on 19 April, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:68594 Court No. - 77 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 14557 of 2024 Applicant :- Sartaj Opposite Party :- State of U.P. Counsel for Applicant :- Mukhtar Alam,Saquib Mukhtar Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
Heard Mr. Mukhtar Alam, the learned counsel for applicant and the learned A.G.A. for State.
Perused the record.
This repeat application for bail has been filed by applicant seeking his enlargement on bail in Case Crime No. 362 of 2022, under Sections 304B, 498A, 323, 201 IPC and Section 3/4 D.P. Act, Police Station- Sahaswan, District Budaun during pendency of trial i.e. Sessions Case No. 1291 of 2022 (State Vs. Shayar Ali) now pending the Court of Additional District Judge, F.T.C. I Budaun. The first bail application of applicant was rejected by this Court by a detailed order dated 21.11.2022, passed in Criminal Misc. Bail Application No. 52277 of 2022 (Sartaj Vs. State of U.P). For ready reference, the same is reproduced herein under:
"1. Heard Mr. Mukhtar Alam, the learned counsel for applicant and the learned A.G.A. for State.
2. This application for bail has been filed by applicant Sartaj seeking his enlargement on bail in Case Crime No. 362 of 2022, under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act, Police Station- Sahaswan, District Budaun during the pendency of trial.
Perused the record.
3. Record shows that first informant-Ass Mohammad lodged an F.I.R. dated 28.07.2022, which was registered as Case Crime No. 362 of 2022, under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act, Police Station- Sahaswan, District Budaun. In the aforesaid F.I.R. six persons namely, Shayar (husband), Sartaj-Father-in-law (applicant herein), Farjana, Wahid, Mumtaj and Devar of the deceased have been nominated as named accused.
4. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of Sanjum, aged about 20 years, daughter of first informant-Ass Mohammad was solemnized with Shayar about one year before the date of aforementioned F.I.R. The son-in-law of first informant namely Shayar stayed at Jaipur and thereafter, at Delhi alongwith his wife i.e. daughter of first informant. After sometime, demand of additional dowry to the tune of Rs. 4 Lakhs was raised. The daughter of first informant repeatedly requested her husband i.e. son-law of first informant not to press the demand of additional dowry on account of poor condition of her parents. The F.I.R. further records that in view of aforesaid, the daughter of first informant was physically assaulted by his son-in-law. The other in-laws as detailed in the F.I.R. also committed physical cruelty upon the daughter of first informant for not getting the demand of additional dowry fulfilled. In spite of repeated request made by first informant not to cause physical and mental cruelty upon her daughter on account of failure to fulfil the demand of additional dowry, yet cruelty upon the daughter of first informant continued unabated. Fifteen days before i.e. from the date of lodging of the F.I.R., in-laws of daughter of first informant dropped the daughter of first informant at her parental home. However, ten days earlier, Shayar, the son-in-law of first informant took the daughter of first informant on the promise that money shall be paid. Since then, there is no contact with daughter of first informant as well as son-in-law. The F.I.R. also states that first informant went a number of times to meet his daughter at her marital home but evey time he was told that marriage of Shayar shall be solemnized with another girl, who belongs to a rich family and her daughter shall not be retrained at her marital home. On 28.07.2022 an skeleton of an unknown body was recovered from the field of one Achhay Miyan. The said skeleton was identified by first informant as the remains of the body of daughter of first informant who identified the same on the basis of the articles lying the skeleton. The FI.R. thus concluded with the recital that the daughter of first informant was put to death by named accused on account of failure to fulfil the demand of additional dowry.
5. After registration of aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. He first got the inquest (panchayatnama) of the body of deceased conducted. In the opinion of the witnesses of inquest (Panch witnesses), the exact nature of death of deceased or the cause of death of the daughter of first informant could not be opined. Thereafter, the post-mortem of the body of deceased was conducted. The Doctor who conducted autopsy on the body of deceased concluded that probable time since death of deceased could not be ascertained. In the opinion of autopsy surgeon, the cause of death of deceased also could not be ascertained. Accordingly, the Doctor mentioned " Could not be ascertained and Rt. haemorrhage bone preserved for D.N.A. and Forensic Examination".
6. During course of investigation, Investigating Officer examined first informant-Ass Mohammad and other witnesses, who have substantially supported the prosecution story as unfolded in 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 some of the named accused as well as one not named accused namely Feeza (unmarried nanad of deceased) is established in the crime in question. Accordingly, he submitted the charge sheet dated 30.09.2022, whereby named accused Shayar (huaband), Sartaj (father-in-law), Farjana (mother-in-law) and not named accused Fiza (unmarried nand) of the deceased have been charge-sheeted under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act.
7. At the very outset, learned counsel for applicant submits that not named but charge-sheeted accused Km. Fiza has already been enlarged on bail by this Court vide order dated 18.11.2022. For ready reference same is extracted herein-below:
"Heard Mr. Mukhtar Alam, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant Km Fiza seeking her enlargement on bail in Case Crime No. 362 of 2022, under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act, Police Station- Sahaswan, District Budaun during the pendency of trial.
Perused the record.
Record shows that marriage of Sayar was solemnized with Sanjum about one year and two months prior to the lodging of F.I.R. However, unfortunately, the wife Sanjum died in mysterious circumstances.
The F.I.R. in respect of aforesaid incident was lodged by first informant Ass Mohammad which was registered as Case Crime No. 362 of 2022, under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act, Police Station- Sahaswan, District Budaun. In the aforesaid F.I.R. six persons namely, Shayar, Sartaj, Farjana, Wahid, Mumtaj, Devar have been nominated as named accused.
During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. The first informant in his statement under section 161 Cr.P.C. has also implicated the present applicant in crime in question.
On the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of the named accused as well as present applicant is established in the crime in question. Accordingly he submitted the charge sheet dated 30.9.2022, whereby, four of the named accused i.e. Sayar, Sartaj, Farjana and Fiza (applicant herein) have been charge-sheeted under sections 304B, 498A, 323, 201 IPC, and 3/4 D.P. Act.
Learned counsel for applicant contends that applicant is innocent. Applicant is unmarried Nanad of deceased. Applicant is not named in the F.I.R. Complicity of applicant has come to surface in the crime in question only on the basis of statement of first informant who has improved upon the prosecution story as unfolded in F.I.R. It is well settled that though the F.I.R. is not to be treated as an encyclopedia of the prosecution case but it must disclose the basic prosecution case. It is thus urged that first informant has tried to improve upon the basis prosecution case. It is then submitted that present case is a case of circumstantial evidence. Therefore, the same has to be examined in the light of parameter laid down by Apex Court in Sharad Birdhichand Sarda, Vs. State of Maharashtra, AIR 1984 Supreme Court 1622. When the statement of first informant is taken as a whole, on the basis of which complicity of present applicant is said to be established in crime in question, prima facie it does not establish the parameters laid down in aforesaid judgement against applicant.
Learned counsel for applicant has then invited attention of Court to the provisions contained in proviso to section 437 Cr.P.C. and on basis thereof he submits that since applicant is an unmarried lady, aged about 20 years, she is therefore liable to be enlarged on bail.
It is next contended that applicant is a lady of clean antecedents inasmuch as she has no criminal history to her credit except the present one. Applicant is in jail since 6.9.2022. As such, he has undergone more than two months 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. Learned A.G.A. submits that though applicant is not named in the F.I.R. but she is a charge-sheeted accused. The deceased was a young lady aged about 22 years. Her death has occurred in mysterious circumstances. Applicant who is inmate of the house and the sister-in-law (Devrani) of husband has not been able to discharge the statutory presumption under section 113 (B) of Indian Evidence Act. Learned counsel for first informant has referred to bail rejection order passed by Court below and on basis thereof he submits that deceased has herself given an application dated 23.6.2022, before the Circle Officer, Tehsil Sahaswan. On the basis of above, he submits that prima facie complicity of applicant in the crime in question cannot be doubted. However, he could not dislodge the factual/legal submissions urged by learned counsel for applicant, at this stage.
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 not named in the F.I.R. Complicity of applicant in the crime in question has surfaced in the statement of first informant under section 161 Cr.P.C, there being no explanation with regard to improvement of the prosecution case from the basic prosecution as unfolded in the F.I.R., the circumstances that have emerged during course of investigation against applicant do not prima facie lead to an inference of guilt of the applicant, as per law laid down by Supreme Court in the judgement noted above, applicant being an unmarried lady aged about 22 years, provisions contained in proviso to section 437 Cr.P.C. but without making any comment on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Km Fiza, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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/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 HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/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 his/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.
Order Date :- 18.11.2022 "
8. It is then contended by learned counsel for applicant that since the cruelty against charge-sheeted accused is common, therefore, the same is interlinked and intertwined. As such, the same is incapable of separation and segregation. In the submission of learned counsel for applicant, the applicant is thus liable to be enlarged on bail on the ground of parity.
9. It is then contended that applicant is father-in-law of deceased. Even though, applicant is named as well as charge-sheeted accused but he is innocent, as the additional demand of dowry, as per the F.I.R., is alleged to have been raised by husband of the deceased. As such, applicant cannot be said to the beneficiary of the alleged additional demand of dowry. After marriage, the deceased was residing with her husband separately first at Jaipur and thereafter, at Delhi. Consequently, it cannot be said that physical and mental cruelty was committed by applicant upon the deceased. According to the learned counsel for applicant, the occurrence took place while the deceased was residing at her marital home. As such, no criminality as alleged in the F.I.R. could have been committed by present applicant. It is lastly contended that applicant is a man of clean antecedents inasmuch he has no criminal history to his credit except the present one. Applicant is in jail since 13.08.2022. As such, he has under-gone almost three and a half months of incarceration. In case applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail.
10. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. submits that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. Clear and categorical allegations have been made in the F.I.R. that demand of additional dowry to the tune of Rs. 4 lakhs was raised by the husband of the deceased but the same was supported by other named accused including applicant. On account of non-fulfilment of demand of additional dowry, physical and mental cruelty was committed upon deceased by her in-laws including applicant. Aforesaid allegations made in the F.I.R. have been found to be substantially correct during course of investigation and therefore, applicant has also been charged-sheeted under Section 498A I.P.C and 3/4 D. P. Act,
11. Learned A.G.A. next submits that it is clear from the prosecution case that the deceased had gone to her marital home fifteen days prior to the F.I.R. As such, the death of deceased has occurred while she was residing at her marital home. Submission made by learned counsel for applicant to the contrary relate to disputed defence of applicant which can more appropriately be dealt with at the time of trial. In short, the submission is that there is no such impeccable evidence on record, on the basis of which it can be definitely concluded that the deceased was residing at her parental home at the time, the occurrence took place.
12. Learned A.G.A. has then invited the attention of Court to the provisions contained in Section 174 Cr.P.C. and on the basis thereof, he submits that immediately when the deceased went missing, applicant as well as other family members were duty bound to inform the concerned police station. However, no information regarding same was given by applicant of any of his family members at the concerned police station.
13. Referring to the F.I.R., learned A.G.A. contends that deceased died while she was residing at her marital home. The death of deceased has occurred within seven years of her marriage and in unnatural and suspicious circumstances. In view of above, he submits that there is a statutory presumption against applicant by virtue of Section 113B of the Evidence Act that death of deceased is a dowry death. However, upto this stage, applicant has failed to rebut the statutory presumption against him. It is further contented by learned A.G.A. that since the occurrence occurred while she was residing at her parental home, therefore, applicant being an inmate of the house, is duty bound to explain the manner of occurrence in terms of Section 106 of Evidence Act. The said burden has also not been discharged by applicant upto this stage. Reference has also been made to Section 174 Cr.P.C. in respect of the submission that deceased, if committed suicide, even then applicant was duty bound to inform the police station of the aforesaid. However, from the date of occurrence till the date of lodging of F.I.R. there is a complete silence on the part of the applicant and his family members, which also is an unexplained/ suspicious circumstance against applicant. On the cumulative strength of above, learned A.G.A. submits that applicant does not deserve any indulgence by this court.
14. When confronted with above, the learned counsel for applicant could not overcome the same.
15. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that death of deceased having occurred within seven years of marriage, therefore, there is a statutory presumption against applicant that the death of deceased is a dowry death, the said presumption has not been rebutted by applicant upto this state, the occurrence has taken place while the deceased was residing in the house of applicant and therefore, by virtue of the provisions contained in Section 106 of Evidence Act, the applicant being an inmate of the house is under burden to explain the manner of occurrence which burden has also not been discharged upto this stage, the silence on the part of applicant from the date of death of deceased upto the date on which the F.I.R. was lodged is also unexplained, same is also an adverse circumstance against applicant, the deceased was a young girl, aged about 20 years, whose death has occurred not only in unnatural but also mysterious and suspicious circumstance, prima-facie, the allegations made in the F.I.R. qua the additional demand of dowry and commission of physical and mental cruelty upon deceased for non-fulfilment of additional demand of dowry have not been found false but without expressing any opinion on merits of the case, this Court does not find any good ground to enlarge the applicant on bail.
16. Consequently, present application for bail fails and is, therefore, liable to rejected.
17. Accordingly, it is rejected. "
Learned counsel for applicant contends that subsequent to the order dated 21.11.2022, the trial of applicant commenced before Court below by means of aforesaid sessions trial. Up to this stage, two prosecution witnesses of fact P.W.1 and P.W.2 have deposed before Court below. However, both the witnesses have not supported the F.I.R. Attention of the Court was invited to the recital contained at page 92 of the paper book that in the statement -in-chief of P.W.1 wherein she has stated that except for Shayar Ali, no other family members or in-laws of the deceased committed mental cruelty upon deceased. Similar is the statement of P.W.2 at page 112 of the paper book. On the above premise, the learned counsel for revisionist contends that both the prosecution witness of fact have not alleged anything adverse against the present revisionist. It is thus urged that observations made in the judgement of Apex Court in paragraph 18 of the judgement of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599 stands satisfied in favour of applicant at this stage. As such, applicant is liable to be enlarged on bail.
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 13.8.2022. As such, he has undergone one year and seven 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. However, upto 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 trial.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is 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, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prosecution witness of fact namely, P.W.1 and P.W.2 have deposed before Court below, both the prosecution witness of fact have categorically stated that applicant did not commit any physical or mental cruelty upon deceased for non fulfillment of additional demand of dowry, the said statements are pointed against husband of the deceased, in view of above, the case of present applicant has become distinguishable from co-accused Shayar, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicants, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of the Supreme court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373 therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail.
Accordingly, the bail application is Allowed.
Let the applicant Sartaj, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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/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 HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/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 his/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.
Order Date :- 19.4.2024 Arshad