Allahabad High Court
Om Ji vs State Of U.P.Through The Secretary ... on 1 April, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 53781 of 2021 Applicant :- Om Ji Opposite Party :- State Of U.P.Through The Secretary Department Of Home Counsel for Applicant :- Aushim Luthra,Atharva Dixit,Sr. Advocate Counsel for Opposite Party :- G.A.,Narendra Kumar,Satya Dheer Singh Jadaun Connected with Case :- CRIMINAL MISC. BAIL APPLICATION No. - 122 of 2022 Applicant :- Ramnaresh Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit Counsel for Opposite Party :- G.A.,Satya Dheer Singh Jadaun With Case :- CRIMINAL MISC. BAIL APPLICATION No. - 224 of 2022 Applicant :- Geeta Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Aushim Luthra Counsel for Opposite Party :- G.A.,Narendra Kumar,Satya Dheer Singh Jadaun With Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 114 of 2022 Applicant :- Anshu Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Aushim Luthra,Mahendra Pratap Counsel for Opposite Party :- G.A.,Narendra Kumar,Satya Dheer Singh Jadaun And Case :- CRIMINAL MISC. BAIL APPLICATION No. - 209 of 2022 Applicant :- Divya Mishra Opposite Party :- State of U.P. Counsel for Applicant :- Atharva Dixit,Aushim Luthra Counsel for Opposite Party :- G.A.,Satya Dheer Singh Jadaun Hon'ble Rajeev Misra,J.
(1) Heard Mr. Manish Tiwary, learned Senior counsel assisted by Mr. Atharva Dixit, learned counsel for applicants. learned A.G.A. for State. and Mr. S.D. Singh Jadaun, learned counsel for first informant.
(2) These applications for bail have been filed by applicants Omji, Vidya Mishra, Anshu Mishra, Ram Naresh Mishra and Geeta Misra seeking their enlargement on bail in Case Crime No. 544 of 2021, under Section 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Kotwali Auraiya, District Auraiya, during the pendency of trial.
(3) Perused the record.
(4) Criminal Misc. Bail Application No. 209 of 2022 (Divya Mishra Vs. State of U.P.) came up for orders on 19.01.2022 and this Court passed following order:-
"1. Heard Mr. Atharva Dixit, the learned counsel for applicant and the learned A.G.A. for State, who are virtually connected.
2. The learned counsel for applicant contends that he has been diagnosed Kovid-19 positive. Therefore, he is unable to assist the Court, in absence of record.
3. The learned A.G.A informs that following Criminal Misc. Bail Applications filed by co-accused are already pending before this Court;
i. Criminal Misc. Bail Application No. 53781 of 2021 (Omji Vs. State of U.P.).
ii. Criminal Misc. Bail Application No.122 of 2022 (Ram Naresh Mishra Vs. State of U.P.) iii. Criminal Misc. Bail Application No. 114 of 2022 (Anshu Vs. State of U.P.) iv. Criminal Misc. Bail Application No. 114 of 2022 (Smt. Geeta Mishra Vs. State of U.P.)
4. In view of above, connect afore-mentioned Criminal Misc. Bail Applications alongwith present application for bail.
5. Matter shall re-appear as fresh on 03.02.2022 alongwith connected matters."
(5) Pursuant to above order dated 19.01.2022, all the aforementioned bail applications stood connected and have now been listed together. Since all the bail applications arise out of same case crime number they have been heard together and are now being disposed of finally by a common order.
(6) It transpires from record that marriage of Anuj Mishra, son of applicants Ram Naresh Mishra and Geeta Mishra was solemnized with Gauri on 24.4.2015 in accordance with Hindu rites and customs. From the aforesaid wedlock. two daughters namely Siddhi and Pratigya were born. However, just after expiry of a period of six years and three months from the date of marriage of Anuj Mishra son of applicants Ram Naresh Mishra and Geeta Mishra, an unfortunate incident occurred on 26.7.2021, in which daughter-in-law of the applicant namely Gauri died as she committed suicide by hanging herself. It is the case of the applicants that information regarding aforesaid incident was immediately given to the parents of the deceased. It is also the case of the applicants that information regarding the aforesaid incident was given at the concerned police station, therefore, the police immediately arrived on the spot, which fact is not disputed by the learned counsel for first informant. The inquest of the body of deceased was conducted on 26.7.2021. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was homicidal. Thereafter, the post mortem of the body of the deceased was conducted on the next day i.e. 27.2.2021. In the opinion of Autopsy Surgeon, the cause of death of the deceased was asphyxia as a result of ante mortem hanging. However, the Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-
1) Multiple contusion present on back side of abdomen.
2) Ligature mark of size 28 cm x 2 cm in front below chin above thyroid joint back ward and interrupted baye of groove is brown and parchemount like margin abraded subcutaneous tissue underneath ligature mark is white hard and glistering back side of mole present.
(7) After the post mortem of the body of the deceased had been conducted, a delayed F.I.R. dated 28.7.2021 was lodged by first informant Rakesh Trivedi and was registered as Case Crime No. 544 of 2021, under Sections 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Kotwali Auraiya, District Auraiya. In the aforesaid F.I.R., nine persons namely Anuj Mishra, (husband), Anshu Mishra (jeth), Divya Mishra (jethani), Shivji (devar), Omji, Bhole, Geeta Mishra (mother-in-law), Ram Naresh Mishra (father-in-law), Krishna Prasad Mishra (grand father-in-law) of the deceased have been nominated as named accused.
(8) The gravamen of the allegations made in the F.I.R. is to the effect that the marriage of Gauri, daughter of first informant aged about 29 years was solemnized with Anuj Mishra on 27.4.2015. However, in spite of the fact that a sum of Rs. 10 lakhs was given in dowry and Rs.15 lakhs were spent in the marriage of the daughter of the first informant, named accused were dissatisfied with the dowry and goods given at the time of marriage. Subsequently, an additional demand of dowry to the tune of Rs. 5 lakhs and a four wheeler was made. As the demand of additional dowry was not fulfilled, physical and mental cruelty is alleged to have been committed upon deceased, which fact was told by the deceased to her parents. The F.I.R. further states that first informant in order to save the marriage of his daughter had subsequently given Rs. 1 lakh in dowry and a plot valued at Rs. 2.5 lakhs. However, in spite of above, physical and mental cruelty upon his daughter did not come to an end. Ultimately, his daughter was put to death on 26.7.2021.
(9) After lodging of aforementioned F.I.R., Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII Cr. P. C. While investigation of aforementioned case crime number was still going on, another F.I.R. dated 28.7.2021 was lodged by another first informant Dileep Prasad, brother of the deceased at Police Station Mangalpur, District Kanpur Dehat which came to be registered as Case Crime No. 369 of 2021, under Sections 34, 452, 323, 504, 506 IPC. In the aforesaid F.I.R., three persons namely Krishna Prasad Mishra, Som Sengar and Gangadhar have been arraigned as named accused, whereas four unknown persons have also been nominated as accused.
(10) In brief, the prosecution story as unfolded in aforesaid F.I.R. is to the effect that named accused came to the house of first informant and thereafter committed criminality upon the first informant and his father Rakesh Chandra Trivedi.
(11) During the course of investigation of case crime no. 544 of 2021, under Sections 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Kotwali Auraiya, District Auraiya, giving rise to these applications for bail, Investigating Officer examined the first informant Rakesh Trivedi, father of the deceased on 22.10.2021. Thereafter, he examined various other witnesses on different dates. Same is being reproduced herein under in a tabulation form:-
(1) Statement of informant under Section 161 Cr. P. C. recorded on 28.07.2021 and 22.10.2021 (2) Statement of Geeta Devi (mother of deceased) under Section 161 Cr. P. C. recorded on 22.10.2021 (3) Statement of Pramod Kumar Trivedi (brother of deceased) under Section 161 Cr. P. C. recorded on 25.10.2021 Total witnesses of charge sheet -- 18 All other 13 are formal witnesses including witnesses of inquest proceedings.
(12) On the basis of above and other material collected by Investigating Officer during the course of investigation, which according to him is adverse to some of the named accused, he opined that charges alleged against some of the named accused are prima facie established. He, accordingly, submitted the charge sheet dated 27.10.2021, whereby six of the named accused have been charge sheeted including the present applicants under Section 498 A, 304 B IPC and Sections 3/4 D.P. Act, whereas three of the named accused namely Shivaji, Bhole (devars of the deceased) and Krishna Prasad Mishra (grand father-in-law of the deceased) have been exculpated.
(13) Upon submission of aforesaid charge sheet, cognizance was taken upon same by Court concerned. However, Mr. Manish Tiwary, learned senior counsel for applicants submits that the case has not yet been committed to the Court of Sessions.
(14) According to Mr. Manish Tiwary, learned Senior counsel for applicants, applicant Ram Naresh Mishra is the father-in-law, applicant Geeta Mishra is the mother-in-law, applicant Anshu Mishra is the jeth, applicant Divya Mishra is the jethani and Omji is the devar of the deceased. Though, applicants are named as well as charge sheeted accused, but they are innocent. Allegations made in the F.I.R. with regard to demand of additional dowry and commission of physical/mental cruelty upon the deceased on account of non fulfilment of demand of additional dowry by applicants are false and fictitious. As such, applicants have been falsely implicated in aforementioned case crime number.
(15) It is then submitted that applicant Geeta Mishra (mother-in-law) of the deceased and Divya Mishra (jethani) of the deceased are ladies. He has then invited the attention of the Court to the provisions contained in proviso to Section 437 Cr. P. C., he submits that as aforesaid applicants are ladies, therefore, they are liable to be enlarged on bail.
(16) Mr. Manish Tiwary, learned senior counsel for applicants further submits that the present applicants were residing separately from the family of the deceased. A categorical averment to this effect has been made in paragraph 25 of the affidavit filed in support of the bail application of applicant Omji. He has then referred to Annexure 11 appended along with the affidavit filed in support of the bail application to evidence the aforesaid fact, which is a certificate issued by S.D.M., Auraiya. On the aforesaid premise, learned Senior counsel contends that since applicants were residing separately, allegations made in the F.I.R. that physical and mental cruelty were committed upon the deceased by named accused including applicants is wholly false.
(17) It is next contended by learned Senior counsel that incident in question has occurred after six years and three months from the date of marriage of the deceased. From the wedlock of the deceased and the son of applicants Ram Naresh Mishra and Geeta Mishra, two daughters namely Siddhi and Pratigya were born who are now residing with the present applicants. Considering the aforesaid fact and circumstance, there could not be any reason for the applicants to commit the crime in question as the death of the mother would deprive the two girl children of motherly love and affection during their childhood.
(18) Referring to the F.I.R. giving rise to these applications for bail, learned Senior counsel submits that there is no allegation in the F.I.R. that there was an immediate demand of dowry soon before the death of the deceased. In the absence of aforesaid allegation in the F.I.R., the death of the deceased cannot be termed as a dowry death. As such, no offence under Section 304 B IPC is made out against applicants.
(19) It is also submitted that there is no direct evidence in between the alleged demand of dowry and death of the deceased. There is nothing on record to show that any complaint was filed by the parents of deceased with regard to alleged commission of physical/mental cruelty upon deceased on account of non fulfilment of demand of additional dowry. He further submits that no criminal proceedings were initiated by the deceased herself or her parents against the alleged criminality alleged to have been committed upon her. It is thus contended that there is nothing on record to infer that physical/mental cruelty was thus committed upon deceased, no offence under Section 498-A IPC is made out against applicants.
(20) According to learned Senior counsel bona fide of the husband of the deceased namely Anuj Mishra is explicit from the fact that the husband of the deceased had himself purchased a plot in the name of his wife i.e. the deceased which fact is clearly proved from the document (sale deed), copy of which has been appended as Annexure 14 to the affidavit filed in support of the bail application of applicant Om ji. In the submission of learned Senior counsel the deceased was preparing for the post of Sub Inspector of police and the entire expenses were born by the husband and father-in-law of deceased. Therefore, in view of above, the recital contained in the F.I.R. that there was demand of additional dowry by the present applicants is wholly false and concocted.
(21) Learned Senior counsel further contends that the occurrence took place on 26.7.2021. The information regarding the occurrence was immediately given to the family members of the deceased. The inquest of the body of the deceased was conducted on 27.7.2021. The brothers of the deceased are witnesses of inquest (Panch witnesses). But the F.I.R. was lodged on 28.7.2021. No explanation regarding the same has come forward.
(22) According to learned Senior counsel, applicants are men of clean antecedents, inasmuch as they have no criminal history to their credit except the present one. Applicant Om ji is in jail since 31.07.2021, applicant Divya Mishra is in jail since 16.09.2021, applicant Anshu Mishra is in jail since 28.08.2021, applicant Geeta Mishra is in jail since 23.08.2021 and applicant Ramnaresh Mishra is in jail since 02.09.2021. As such, they have undergone sufficient period of incarceration. In case, applicants are enlarged on bail, they shall not misuse liberty of bail and shall co-operate with the trial. The charge sheet has already been submitted, therefore, evidence sought to be relied upon by the prosecution against the applicants stands crystallized. As such, the custodial arrest of the applicants during the course of trial is not absolutely necessary. It is thus urged that applicants are liable to be enlarged on bail.
(23) Per contra, the learned A.G.A. and Mr. S.D. Singh Jadaun, learned counsel for first informant have vehemently opposed these applications for bail. They jointly submit that applicants are not only named, but also charge sheeted accused, therefore, they do not deserve any sympathy of this Court.
(24) According to Mr. S.D.S. Jadaun, learned counsel for first informant, the witnesses examined by the Investigating Officer under Section 161 Cr. P. C. have categorically stated that soon before the death, there was an immediate demand of dowry. As such, applicants are guilty of committing an offence under Section 304 B IPC. Mr. S.D.S. Jadaun, learned counsel for first informant further submits that first F.I.R. was lodged on 28.7.2021 by first informant Rakesh Trivedi and was registered as Case Crime No. 544 of 2021, under Section 498A, 304B IPC and Sections 3/4 D.P. Act, P.S. Kotwali Auraiya, District Auraiya. On the same day, some persons other than applicants but from the side of applicants came to the house of first informant in retaliation to the criminal proceedings initiated against applicants and committed criminality. As a consequence of above, some scuffle took place on account of which F.I.R. dated 28.7.2021 was lodged and registered as Case Crime No. 369 of 2021, under Sections 34, 452, 323, 504, 506 IPC, P.S. Mangalpur, District Kanpur Dehat came to be registered. He, therefore, submits that on account of aforesaid peculiar facts, no indulgence be granted by this Court in favour of applicants.
(25) He, further submits that the Doctor, who conducted the autopsy of the body of the deceased found certain contusions on the back of the body of the deceased. However, no explanation has come forward from the side of the applicants regarding the same.
(26) In rejoinder, Mr. Manish Tiwary, learned Senior counsel has rejoined the submissions urged by him in support of the bail applications. He firstly submits that in the F.I.R. giving rise to these applications for bail, general and common allegations were made against all the named accused, who are nine in number. However, out of the nine named accused, three have been exculpated. From the perusal of material on record, no such material can be discovered, on the basis of which complicity of the present applicants and another named accused can alone be said to be established. He, therefore, submits that the charge sheet is not the out come of free and fair investigation. Investigating Officer has acted as an agent of prosecution. As such, charge sheet is tainted.
(27) He further submits that though F.I.R. is not the encyclopedia of the prosecution case, but it must disclose the basic prosecution case. In the F.I.R., there is no averment that there was an immediate demand of dowry before the death of the deceased. It is because of above that improvement has been made in the statements of the family members of the deceased including first informant. As such, the same are not reliable at this stage on account of the embellishment occurring therein. The absence of allegation in the FIR that there was an immediate demand of dowry soon before the death of the deceased clearly belies the prosecution story.
(28) Learned Senior counsel vehemently submits that so far as the ante mortem injuries found on the body of the deceased are concerned, the same are contusions and not any grievous or fatal injuries. He further contends that it is an admitted fact that all the applicants were residing separately from the family of deceased. They had reached at the place of occurrence only after they got the information of the occurrence. Since the applicants are not the inmates of the house, therefore, no burden under Section 106 of the Evidence Act can be imposed upon them to explain the above.
(29) It is lastly urged that bona fide of applicants is explicit from the fact that information regarding the occurrence was given at the concerned Police Station within the shortest possible time. The police arrived at the spot before the arrival of first informant and other relatives of the deceased. Aforesaid fact is an admitted fact to the prosecution.
(30) On the aforesaid factual and legal premise, learned Senior counsel submits that considering the totality of the facts and circumstances of the case, applicants are liable to be enlarged on bail.
(31) Having heard Mr. Manish Tiwary, learned senior counsel for applicants, learned A.G.A. for the state, Mr. S.D.S. Jadaun, learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused and accusation made, but without expressing any opinion on merits of the case, the applicants have made out a case for bail. Accordingly, bail applications are allowed.
(32) Let the applicants Omji, Ram Naresh Mishra, Geeta Misra, Anshu Mishra and Divya Mishra involved in aforesaid case crime number, be released on bail on their 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 applicants shall file an undertaking to the effect that they will not tamper with the evidence and will not pressurize/intimidate the prosecution witnesses and will cooperate with the trial. The applicants shall not seek any adjournment on the dates 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicants 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 them in accordance with law.
Order Date :- 1.4.2022 HSM