Allahabad High Court
Smt. Birmo vs State Of U.P. on 11 April, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 75 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44940 of 2022 Applicant :- Smt. Birmo Opposite Party :- State of U.P. Counsel for Applicant :- Sushil Kumar Tewari,Braham Singh Counsel for Opposite Party :- G.A.,A Kumar Srivastava Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the informant.
By means of this application under Section 439 of Cr.P.C., applicant-Smt. Birmo, who is involved in Case Crime No. 186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Sections 3/4 of Dowry Prohibition Act, Police Station Seohara, District Bijnor, seeks enlargement on bail during the pendency of trial.
As per prosecution case in brief, informant Mahendra Singh, father of the deceased lodged an F.I.R. on 18.04.2022 against Smt. Birmo (present applicant) and five others namely Kolinder, Ram Singh, Anju, Ashoka and Harendra alleging inter-alia that the marriage of his daughter was solemnized with Kolinder six years back. After the marriage, aforesaid accused persons started harassing and torturing his daughter and started making additional demand of Rs. 5,00,000/- and on non-fulfillment of their demand, all the accused persons assaulted her with knife and later on sprinkled kerosene oil on her and set her ablaze to death.
It is argued by learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case. It is next argued that applicant is mother-in-law of the deceased. During investigation, wife of co-accused Harendra Singh has been exonerated by the police. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and her name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit. Applicant has no criminal history to her credit and is languishing in jail since 09.05.2022.
Per contra, learned A.G.A. and learned counsel for the informant opposed the prayer for bail of the applicant by contending that the dying declaration categorically indicates that the applicant was present at the time of occurrence. The said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. It is further submitted that the bail application of co-accused Harendra Singh was rejected by the co-ordinate Bench of this Court vide order dated 06.01.2023 in Criminal Misc. Bail Application No. 44764 of 2022.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that the deceased died her unnatural death in her matrimonial home. In the dying declaration, there is specific allegation against the applicant, which cannot be ignored and disbelieved at this stage. Bail application of co-accused Harendra Singh, under similar accusation, was rejected, as noted above. The offence is heinous in nature. Considering the manner in which the crime has been committed, as noted above, the bail application of the applicant is not liable to be allowed.
Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injury, presence of dying declaration and severity of punishment, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected.
It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 11.4.2023 Saurabh