Allahabad High Court
Subhash vs State Of U.P. on 21 November, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 50821 of 2022 Applicant :- Subhash Opposite Party :- State of U.P. Counsel for Applicant :- Rajiv Lochan Shukla,Yogesh Narayan Shukla Counsel for Opposite Party :- G.A.,Nitin Raj Singh Hon'ble Rajeev Misra,J.
1. Heard Mr. Yogesh Narayan Shukla alongwith Mr. Rajiv Lochan Shukla, the learned counsel for applicant, the learned A.G.A. for State and Mr. Nitin Raj Singh, the learned counsel for first informant.
2. Perused the record.
3. Instant bail application has been filed by applicant-Subhash seeking his enlargement on bail in Case Crime No. 208 of 2022 under Sections 498A, 323 I.P.C. and 3/4 Dowry Prohibition Act, Police Station- Jewar, District-Gautam Buddh Nagar, during the pendency of trial
4. It transpires from record that marriage of Rakesh, son of applicant was solemnized with Pooja @ Jooli (daughter of first informant) on 26.09.2018 in accordance with Hindu Rites and Customs. However, just before expiry of a period of four years from the date of marriage of son of applicant, an unfortunate incident occurred on 07.06.2022 in which, daughter of first informant namely Pooja @ Jooli died as she committed suicide by hanging herself. Information recording aforesaid occurrence at the concerned police station was not given by applicant or any of his family members but by P.R.V. i.e. performance of police response vehicle. On the basis of above, Inquest (Panchayatnama) of the body of deceased was conducted on the same day i.e. 07.06.2022. In the opinion of panch witnesses, nature of death of deceased was characterised as suicidal. Subsequently, the first informant-Sri Vijaypal Singh, father of deceased, lodged a an F.I.R. dated 07.06.2022, which was registered as Case Crime No. 208 of 2022 under Sections 498A, 304B I.P.C., Police Station- Jewar, District-Gautam Buddh Nagar. In the aforesaid F.I.R., five persons namely, Rakesh (hasband), Nikhless (mother-in-law) Subhash (father-in-law), Kajal (Nanad) and Rajkumar (not relative) of the deceased have been nominated as the named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that in-laws of the daughter of first informant were dissatisfied with the goods and dowry given at the time of marriage of the daughter of first informant. Subsequently, they demanded additional dowry. As aforesaid demand of additional dowry was not fulfilled by the daughter of first informant, therefore, physical and mental cruelty were caused upon the daughter of first informant. As a result of above, daughter of first informant has been put to death.
6. 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. The post-mortem on the body of deceasd was conducted on 07.06.2022. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on the body of deceased:
"1. An oblique ligature mark of 29 x 1 cm present arouncd neck above thyroid cartilage along the line of mandible with a gap of 9 cm on right side of neck. Ligature mark is 2 cm from Rt. ear, 7 cm from left ear & 4 cm from chin. On measuring ligatue mark grove yellowish hand parchment like. On measuring ligature mark 5/ C tissue glistening. No other external mark of other part of body.
7. In the opinion of Autopsy Surgeon, cause of death of deceased was asphyxia as a result of ante-mortem hanging.
8. Subsequent to above, statements of first informant and other witnesses were recorded under Section 161 Cr.P.C., 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 only two of the named accused namely, Ramesh (husband) of deceased and Subhash (applicant herein) father-in-law of deceased is established in the crime in question. He, therefore, submitted the charge sheet dated 13.08.2022 whereby aforementioned named accused namely, Ramesh and Subhash (applicant herein) were charge sheeted under Sections 304B, 498A, 323 I.P.C. and 3/4 Dowry Prohibition Act whereas the remaining three other named accused have been exculpated.
9. Learned counsel for applicant submits that though the applicant is father-in-law of deceased and a named as well as charge-sheeted accused but he is innocent. According to learned counsel for applicant, deceased was a short tempered lady and she has taken the extreme step of committing suicide by hanging herself. He has then referred to the post-mortem report of the body of deceased and on basis thereof, he contends that bonafide of applicant is also explicit from the fact that except for the ligature mark, no other external or internal ante-mortem injury was found on the body of deceased. There is no evidence upto this stage to show abatement on the part of applicant in the commission of alleged either. Allegation made in the F.I.R. with regard to additional demand of dowry are vague and concocted and same are devoid of material particulars. Occurrence took place after expiry of approximately four years of marriage of deceased. It is lastly contended that 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 custody since 10.06.2022. As such, he has undergone more than five months of incarceration. Husband of deceased, son of applicant, is already in jail. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with 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 course of the 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. for State and Mr. Nitin Raj Singh, the learned counsel for first informant have opposed the present application for bail. They jointly submit that since the applicant is a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. It is next contended by them that the death of deceased is a dowry death that has occurred in unnatural circumstances in the house of applicant. Placing reliance upon the provisions contained in Section 113B of Evidence Act, they contend that there is a statutory presumption against applicant that death of deceased. Up to this stage, applicant has failed to rebut the statutory presumption by cogent material. Occurrence has taken place in the house of applicant and thereafter by virtue of Section 106 of the Evidence Act, applicant is under a statutory presumption to dislodge the aforesaid burden. However, up to this stage, applicant has failed to dislodge the same either. Therefore, no indulgence be granted by this Court in favour of applicant. However, he could not dispute the legal and factual submissions urged by learned counsel for applicant.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State and Mr. Nitin Raj Singh, the learned counsel for first informant., upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that occurrence in question has occurred approximately after four years from the date of marriage of son of applicant, there being no evidence to show abetment, instigation or conspiracy on the part of applicant in the commission of alleged crime up to this stage, except for the ligature mark, there is no other external or internal injury on the body of deceased, allegations regarding additional demand of dowry having not substantiated by material particular but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
12. Accordingly, present application for bail is allowed.
13. Let the applicant-Subhash involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
14. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison Order Date :- 21.11.2022 YK