Allahabad High Court
Manoj Bharti vs State Of U.P. on 11 November, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2024:AHC:176270 Court No. - 72 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34600 of 2024 Applicant :- Manoj Bharti Opposite Party :- State of U.P. Counsel for Applicant :- Avanish Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Heard Mr. Avanish Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.
2. Perused the record.
3. This third application for bail has been filed by applicant-Manoj Bharti seeking his enlargement on bail in Case Crime No. 679 of 2020 under Sections 323, 307, 498A I.P.C. and Sections 3/4 D. P. Act, Police Station-Banna Devi, District-Aligarh, during the pendency of trial i.e. Sessions Trial No. 893 of 2021 (State Vs. Rambeti and others) under Sections 498A, 304B, 323 I.P.C., Police Station-Banna Devi, District-Aligarh now pending in the Court of Additional District Judge/F.T.C-I., Aligarh.
4. The first bail application of applicant was rejected by this Court by a detailed order dated 11.08.2023 passed in Criminal Misc. Bail Application No.35748 of 2022 (Manoj Bharti Vs. State of U.P.). For ready reference, the said order is reproduced herein under:
"1. Heard Mr. G. S. Chaturvedi, the learned Senior Counsel assisted by Mr. Prashant Vyas, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant bail application has been filed by applicant-Manoj Bharti seeking his enlargement on bail in Case Crime No. 0679 of 2020, under Sections 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh.
4. Record shows that marriage of Neelam (sister of first informant) was solemnized with Pradeep Bharti on 19.04.2018. However, just after an expiry of a period of two years and six months from the date of marriage of the brother of applicant namely Pradeep Bharti, an unfortunate incident occurred on 31.10.2020, in which the 'Bhaiyahoo' of applicant namely Neelam (wife of the brother of applicant) sustained burn injury. It is the case of applicant that the fire was extinguished/doused by the husband of the victim and the injured was immediately rushed to Hospital. However, the victim was referred to Medical College, Aligarh. Accordingly, the victim was admitted at Aligarh Muslim University Medical College, Aligarh on 01.11.2020. Considering the critical condition of the victim, she was referred to Safdarganj Hospital New Delhi for better treatment. Accordingly, the victim was shifted to Safdarganj Hospital New Delhi. While the victim was undergoing treatment at Aligarh Muslim University Medical College, Aligarh, her dying declaration was recorded by the Additional City Magistrate, Aligarh on 01.11.2020. Copy of the same is on record at page 59 of the paper book. In spite of above, while the victim was undergoing treatment at Safdarganj Hospital New Delhi, her subsequent dying declaration was recorded on 02.11.2020. Copy of same is on record as Annexure 7 to the affidavit filed in support of the bail application.
5. Ultimately the victim succumbed to the burn injuries sustained by her at Safdarganj Hospital New Delhi. Subsequent to above, the inquest of the body of deceased was conducted on 01.11.2020 at Safdarganj Hospital New Delhi. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterized as homicidal. Thereafter, the post-mortem of the body of the deceased was conducted on the next day i.e. 02.11.2020. The Doctor, who conducted the autopsy of the body of the deceased, opined that the cause of death of deceased was Septicemic shock due to ante-mortem thermal flame burns involving 87 % of total body surface area.
6. The Autopsy Surgeon found following ante-mortem injuries on the body of the deceased.
i. Infected dermo-epidermal burns with foul smelling yellow green dried slough present at burnt areas at places, black, crust present at places, present in following distribution on the body:
ii. Head, neck and face:9%.
Iii.Right upper limb:9% involving right palm.
iv. Left upper limb:9% involving left palm.
v. Chest and abdomen:14%, /soarubg if areas on upper aspect of chest and lower aspect of abdomen.
vi. Right lower limb:16% with sparing of medical aspect of thigh, lateral aspect of foot and sole.
Vii. Left Lower limb: 16% with sparing of medical aspect of thigh, lateral aspect of foot and sole.
Viii. Back of trunk: 14 % with sparing of lower back area.
Vix. External genitalis: 0%
7. After the aforesaid proceedings were undertaken, an F.I.R. dated 01.11.2020 was lodged by first informant Tejveer Singh (brother of deceased) and was registered as Case Crime No. 0679 of 2020 under Sections 323, 307,498A, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh. In the aforesaid F.I.R., seven persons namely Pradeep Bharti (husband), Rambeti (mother-in-law), Ramjilal (father-in-law), Manoj Bharti (Jeth), Shashi (Jethani), Sulekha Bharti (nanad) and Rajkumar (Devar) of the victim 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 Neelam, the sister of first informant, was solemnized with Pradeep Bharti on 19.04.2018 in accordance with Hindu Rites and Customs. At the time of marriage of deceased, a sum of Rs. 20 Lakhs is alleged to have been spent. However, the named accused were dissatisfied with the amount, goods and dowry given at the time of marriage. Additional demand of dowry i.e. a four wheeler was made. On account of non-fulfilment of additional demand of dowry, physical and mental cruelty was committed upon deceased. Previously also the deceased was assaulted. Various other allegations have also been made against named accused. Ultimately, the F.I.R. concludes with the recital that sister of first informant has been put to death by torching her.
9. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. He recorded the statement of the first informant and other witnesses namely I. Bahadur Singh ii. Smt. Munni Devi (mother of the deceased) iii. Pawan Kumar. iv. Lalit Kumar. v. Smt. Munni Singh. vi. Viri Singh vii. Uday Pal Singh viii. Smt. Vinita Devi ix. Sukhvir Singh. x. Dr. Kkuyyum. xi. Dr. Kunal and xii. Dr. Ajit under Section 161 Cr.P.C. Witnesses so examined have substantially supported 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 all the named accused is established in the crime in question. He, accordingly, submitted the charge-sheet dated 21.01.2021, whereby all the named accused have been charge-sheeted under Sections 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act.
10. After submission of aforementioned charge-sheet, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is exclusively triable by Court of Sessions, consequently, concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 895 of 2021 (State Vs. Rambeti and others) under Section 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh came to be registered. Upto this stage, statement of only one prosecution witnesses of fact namely P.W.-1 Tejveer Singh (first informant) has been recorded.
11. Mr. G. S. Chaturvedi, the learned Senior Counsel assisted by Mr. Prashant Vyas, the learned counsel for applicant submits that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. According to the learned Senior Counsel, there are two dying declarations of the deceased on record. The first dying declaration was recorded on 01.11.2020, which is on record at page 59 of the paper-book,whereas the second dying declaration of the deceased was recorded on 02.11.2020, which is also on record at page at 59 of the paper book.
12. Challenging the credibility of the aforesaid dying declarations, he submits that simply on the basis of aforementioned dying declarations, it cannot be conclusively concluded that applicant has committed the crime in question. With regard to the veracity of first dying declaration dated 01.11.2020, he submits that the said dying declaration was recorded by the concerned Magistrate through a Mobile Phone and not directly in writing. As such, it is no dying declaration in the eyes of law as per the provisions contained in Section 32 of the Indian Evidence Act. The credibility of the first dying declaration as noted above is further sought to be undermined by referring to the statement of the first informant i.e. P.W.-1 before court below, wherein P.W.-1 has categorically admitted that aforesaid dying declaration was not noted down by the concerned Magistrate in his hand writing but the same was recorded on a Mobile phone.
13. With regard to the second dying declaration, the learned Senior Counsel contends that victim in her aforesaid dying declaration has stated that one person by the name of Manoj poured kerosene upon her. It is this part of second dying declaration which according to the learned Senior Counsel makes the same doubtful inasmuch as the victim has not specifically stated that Manoj who is Jeth of the victim poured kerosene upon her. He, therefore, submits that benefit of doubt is clearly admissible to applicant at this stage. According to the learned Senior Counsel except for the above , there is no other material on record on the basis of which it can be even alleged that applicant poured kerosene upon the victim and thereafter she was set at blaze.
13. According to the learned Senior Counsel, 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 simply working as junior clerk. He is in custody since 01.11.2020. As such, he has undergone more than two years and eight months of incarceration. Trial has already commenced. The entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, even upto this stage there does not exist any such circumstance necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends 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 the trial.
14. 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. As per the postmortem report of deceased, she sustained thermal flame burn on her body to the extent of 87%. According to the learned A.G.A. as the injury could not have been sustained by the victim on account of self immolation but only on account of a deliberate act of accused in immolating the victim, therefore, no indulgence be granted by this court in favour of applicant.
15. Referring to the first dying declaration of the deceased referred to above, the learned A.G.A. contends that even if the said document is not a dying declaration in the strict sense of the statement yet it can be treated as evidence. The admissibility of the said document can be done in case, a person, who recorded the statement submits a certificate of the same in terms of Section 65B of the Evidence Act. With reference to the case diary the learned A.G.A. contends that the Additional City magistrate, Aligarh, who recorded the first dying declaration of the deceased, has given the certificate dated 20.07.2023 in terms of Section 65B of the Evidence Act. As the said statement can now be relied upon.
17. According to the learned A.GA., the deceased was a young girl aged about 32 years who died an unnatural death on account of an incident which occurred at her marital home. Therefore, the burden is upon the defence to explain the manner of occurrence as well as their innocence in terms of Sections 106 and 113B of Indian Evidence Act. However the applicant has miserably failed to dislodged the said burden
18. It is also contended by the learned A.G.A. that a plea has also been raised that applicant is residing at Government Quarter 25, Ramghat Road, Quarsi, Aligarh, which is a place different from the marital home of the deceased. The same cannot be taken into consideration as the same is yet to be proved during the course of trial pending before court below. Trial has already commenced, therefore, interest of justice shall better be served in case a direction is issued by this Court to court below to conclude the trial on day to day basis in stead of deciding the bail application.
19. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, nature and gravity of offence, accusations made and also complicity of applicant coupled with the fact that the deceased, who is a young girl aged about 32 years, who has died just after 2 years and 6 months of her marriage, the nature of the injuries sustained by her (burn injuries), the statement of the deceased recorded before the death on 01.11.2020, the Occurrence has taken place in the maternal home of the deceased and within seven years of marriage, as such the same is a dowry death, however the defence including the applicant has failed to discharge the burden in terms of Sections 106 and 113B of Evidence Act upto this stage, there being nothing on record to infer the innocence of applicant, therefore, irrespective of the fact that applicant is man of clean antecedents inasmuch as he has no criminal history exceppt the present one, the period of incarceration undergone, police report (charge-sheet) under Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, this Court does not find any good ground to enlarge the applicant on bail.
20. As a result, present application for bail fails and is liable to be rejected.
21. It is accordingly, rejected.
Order Date :- 11.08.2023 "
5. Subsequent to above order dated 11.08.2023, applicant filed his repeat application for bail, which was registered as Criminal Misc. Bail Application No. 3314 of 2024 (Manoj Bharti Vs. State of U.P.). The aforesaid bail application again came to be rejected by this Court vide order dated 04.03.2024. For ready reference the order dated 04.03.2024 is reproduced herein-below:
"Heard Mr. Avanish Kumar Srivastava, 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 Manoj Bharti, seeking his enlargement on bail in Case Crime No. 679 of 2020, under Sections 498A, 3041-B, 323, IPC and Section 3/4 D.P. Act, Police Staiton- Bannad Devi, District Aligarh, during pendency of trial.
The first bail application of the applicant was rejected by this Court by a detailed order dated 11.8.2023, passed in Criminal Misc. Bail Application No. 35748 of 2022 (Manoj Bharti Vs. State of U.P). For ready reference, the same is extracted herein under:
"1. Heard Mr. G. S. Chaturvedi, the learned Senior Counsel assisted by Mr. Prashant Vyas, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. Instant bail application has been filed by applicant-Manoj Bharti seeking his enlargement on bail in Case Crime No. 0679 of 2020, under Sections 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh.
4. Record shows that marriage of Neelam (sister of first informant) was solemnized with Pradeep Bharti on 19.04.2018. However, just after an expiry of a period of two years and six months from the date of marriage of the brother of applicant namely Pradeep Bharti, an unfortunate incident occurred on 31.10.2020, in which the 'Bhaiyahoo' of applicant namely Neelam (wife of the brother of applicant) sustained burn injury. It is the case of applicant that the fire was extinguished/doused by the husband of the victim and the injured was immediately rushed to Hospital. However, the victim was referred to Medical College, Aligarh. Accordingly, the victim was admitted at Aligarh Muslim University Medical College, Aligarh on 01.11.2020. Considering the critical condition of the victim, she was referred to Safdarganj Hospital New Delhi for better treatment. Accordingly, the victim was shifted to Safdarganj Hospital New Delhi. While the victim was undergoing treatment at Aligarh Muslim University Medical College, Aligarh, her dying declaration was recorded by the Additional City Magistrate, Aligarh on 01.11.2020. Copy of the same is on record at page 59 of the paper book. In spite of above, while the victim was undergoing treatment at Safdarganj Hospital New Delhi, her subsequent dying declaration was recorded on 02.11.2020. Copy of same is on record as Annexure 7 to the affidavit filed in support of the bail application.
5. Ultimately the victim succumbed to the burn injuries sustained by her at Safdarganj Hospital New Delhi. Subsequent to above, the inquest of the body of deceased was conducted on 01.11.2020 at Safdarganj Hospital New Delhi. In the opinion of the witnesses of inquest (panch witnesses), the nature of death of deceased was characterized as homicidal. Thereafter, the post-mortem of the body of the deceased was conducted on the next day i.e. 02.11.2020. The Doctor, who conducted the autopsy of the body of the deceased, opined that the cause of death of deceased was Septicemic shock due to ante-mortem thermal flame burns involving 87 % of total body surface area.
6. The Autopsy Surgeon found following ante-mortem injuries on the body of the deceased.
i. Infected dermo-epidermal burns with foul smelling yellow green dried slough present at burnt areas at places, black, crust present at places, present in following distribution on the body:
ii. Head, neck and face:9%.
Iii.Right upper limb:9% involving right palm.
iv. Left upper limb:9% involving left palm.
v. Chest and abdomen:14%, /soarubg if areas on upper aspect of chest and lower aspect of abdomen.
vi. Right lower limb:16% with sparing of medical aspect of thigh, lateral aspect of foot and sole.
Vii. Left Lower limb: 16% with sparing of medical aspect of thigh, lateral aspect of foot and sole.
Viii. Back of trunk: 14 % with sparing of lower back area.
Vix. External genitalis: 0%
7. After the aforesaid proceedings were undertaken, an F.I.R. dated 01.11.2020 was lodged by first informant Tejveer Singh (brother of deceased) and was registered as Case Crime No. 0679 of 2020 under Sections 323, 307,498A, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh. In the aforesaid F.I.R., seven persons namely Pradeep Bharti (husband), Rambeti (mother-in-law), Ramjilal (father-in-law), Manoj Bharti (Jeth), Shashi (Jethani), Sulekha Bharti (nanad) and Rajkumar (Devar) of the victim 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 Neelam, the sister of first informant, was solemnized with Pradeep Bharti on 19.04.2018 in accordance with Hindu Rites and Customs. At the time of marriage of deceased, a sum of Rs. 20 Lakhs is alleged to have been spent. However, the named accused were dissatisfied with the amount, goods and dowry given at the time of marriage. Additional demand of dowry i.e. a four wheeler was made. On account of non-fulfilment of additional demand of dowry, physical and mental cruelty was committed upon deceased. Previously also the deceased was assaulted. Various other allegations have also been made against named accused. Ultimately, the F.I.R. concludes with the recital that sister of first informant has been put to death by torching her. .
9. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. He recorded the statement of the first informant and other witnesses namely I. Bahadur Singh ii. Smt. Munni Devi (mother of the deceased) iii. Pawan Kumar. iv. Lalit Kumar. v. Smt. Munni Singh. vi. Viri Singh vii. Uday Pal Singh viii. Smt. Vinita Devi ix. Sukhvir Singh. x. Dr. Kkuyyum. xi. Dr. Kunal and xii. Dr. Ajit under Section 161 Cr.P.C. Witnesses so examined have substantially supported 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 all the named accused is established in the crime in question. He, accordingly, submitted the charge-sheet dated 21.01.2021, whereby all the named accused have been charge-sheeted under Sections 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act.
10. After submission of aforementioned charge-sheet, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is exclusively triable by Court of Sessions, consequently, concerned Magistrate committed the case to the Court of Sessions. Resultantly, Sessions Trial No. 895 of 2021 (State Vs. Rambeti and others) under Section 498A, 304B, 323 I.P.C. and Sections 3/4 D.P. Act, Police Station-Banna Devi, District-Aligarh came to be registered. Upto this stage, statement of only one prosecution witnesses of fact namely P.W.-1 Tejveer Singh (first informant) has been recorded.
11. Mr. G. S. Chaturvedi, the learned Senior Counsel assisted by Mr. Prashant Vyas, the learned counsel for applicant submits that though the applicant is a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. According to the learned Senior Counsel, there are two dying declarations of the deceased on record. The first dying declaration was recorded on 01.11.2020, which is on record at page 59 of the paper-book,whereas the second dying declaration of the deceased was recorded on 02.11.2020, which is also on record at page at 59 of the paper book.
12. Challenging the credibility of the aforesaid dying declarations, he submits that simply on the basis of aforementioned dying declarations, it cannot be conclusively concluded that applicant has committed the crime in question. With regard to the veracity of first dying declaration dated 01.11.2020, he submits that the said dying declaration was recorded by the concerned Magistrate through a Mobile Phone and not directly in writing. As such, it is no dying declaration in the eyes of law as per the provisions contained in Section 32 of the Indian Evidence Act. The credibility of the first dying declaration as noted above is further sought to be undermined by referring to the statement of the first informant i.e. P.W.-1 before court below, wherein P.W.-1 has categorically admitted that aforesaid dying declaration was not noted down by the concerned Magistrate in his hand writing but the same was recorded on a Mobile phone.
13. With regard to the second dying declaration, the learned Senior Counsel contends that victim in her aforesaid dying declaration has stated that one person by the name of Manoj poured kerosene upon her. It is this part of second dying declaration which according to the learned Senior Counsel makes the same doubtful inasmuch as the victim has not specifically stated that Manoj who is Jeth of the victim poured kerosene upon her. He, therefore, submits that benefit of doubt is clearly admissible to applicant at this stage. According to the learned Senior Counsel except for the above , there is no other material on record on the basis of which it can be even alleged that applicant poured kerosene upon the victim and thereafter she was set at blaze.
13. According to the learned Senior Counsel, 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 simply working as junior clerk. He is in custody since 01.11.2020. As such, he has undergone more than two years and eight months of incarceration. Trial has already commenced. The entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, even upto this stage there does not exist any such circumstance necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, contends 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 the trial.
14. 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. As per the postmortem report of deceased, she sustained thermal flame burn on her body to the extent of 87%. According to the learned A.G.A. as the injury could not have been sustained by the victim on account of self immolation but only on account of a deliberate act of accused in immolating the victim, therefore, no indulgence be granted by this court in favour of applicant.
15. Referring to the first dying declaration of the deceased referred to above, the learned A.G.A. contends that even if the said document is not a dying declaration in the strict sense of the statement yet it can be treated as evidence. The admissibility of the said document can be done in case, a person, who recorded the statement submits a certificate of the same in terms of Section 65B of the Evidence Act. With reference to the case diary the learned A.G.A. contends that the Additional City magistrate, Aligarh, who recorded the first dying declaration of the deceased, has given the certificate dated 20.07.2023 in terms of Section 65B of the Evidence Act. As the said statement can now be relied upon.
17. According to the learned A.GA., the deceased was a young girl aged about 32 years who died an unnatural death on account of an incident which occurred at her marital home. Therefore, the burden is upon the defence to explain the manner of occurrence as well as their innocence in terms of Sections 106 and 113B of Indian Evidence Act. However the applicant has miserably failed to dislodged the said burden
18. It is also contended by the learned A.G.A. that a plea has also been raised that applicant is residing at Government Quarter 25, Ramghat Road, Quarsi, Aligarh, which is a place different from the marital home of the deceased. The same cannot be taken into consideration as the same is yet to be proved during the course of trial pending before court below. Trial has already commenced, therefore, interest of justice shall better be served in case a direction is issued by this Court to court below to conclude the trial on day to day basis in stead of deciding the bail application.
19. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, nature and gravity of offence, accusations made and also complicity of applicant coupled with the fact that the deceased, who is a young girl aged about 32 years, who has died just after 2 years and 6 months of her marriage, the nature of the injuries sustained by her (burn injuries), the statement of the deceased recorded before the death on 01.11.2020, the Occurrence has taken place in the maternal home of the deceased and within seven years of marriage, as such the same is a dowry death, however the defence including the applicant has failed to discharge the burden in terms of Sections 106 and 113B of Evidence Act upto this stage, there being nothing on record to infer the innocence of applicant, therefore, irrespective of the fact that applicant is man of clean antecedents inasmuch as he has no criminal history exceppt the present one, the period of incarceration undergone, police report (charge-sheet) under Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, this Court does not find any good ground to enlarge the applicant on bail.
20. As a result, present application for bail fails and is liable to be rejected.
21. It is accordingly, rejected."
Learned counsel for revisionist contends that trial of applicant had commenced prior to the order dated 11.8.2023 itself. However, up to this stage, only two prosecution witness of fact namely, P.W.1 Tejveer (first informant), P.W. 2 Bahadur Singh (father of deceased) has been recorded. Statement in chief of P.W.3 has also been recorded but he has been absconding from the proceedings of the trial for the last 8 months. Consequently, examination-in-chief of P.W.3 could be recorded till date. As a result, the Court has closed the evidence of P.W.3 and now proceeded to record the statement of P.W.4. On the aforesaid premise, he submits that prosecution of applicant in aforesaid trial is proceeding at an snail's space. The delay in trial is not attributable to applicant as he is in custody, but on account of lackadaisical approach of prosecutrix in pursuing the trial. Reference in this regard is made to the judgement of Supreme Cout in A.R. Antulay Vs. R.S. Nayak, 1992 (1) SCC 225 and on basis thereof it is urged by learned counsel for applicant that right to speedy trial is now recognized as a fundamental right of accused. Since on account of conduct of prosecution aforesaid right stands infringed, therefore, applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the present application for bail. He contends that complicity of applicant in the crime in question has emerged as per dying declaration of deceased, which was recorded at Safdarganj Hospital, New Delhi. Since the deceased clearly and categorically nominated the present applicant in the crime in question, therefore, no equity can be gathered by applicant on the basis of submissions, as noted herein above. The deceased was young lady aged about 28 years and she has died within seven years of her marriage at her matrimonial home. Applicant is jeth of the deceased and inmate of the house. As such the burden is upon the applicant to not only explain the manner of occurrence, but also the innocence in terms of Section 106 and 113 B of the Evidence Act, particularly when the deceased in her dying declaration has nominated the applicant for immolating her. However applicant has miserably failed to discharge the aforesaid burden upto this stage. On the above conspectus, learned A.G.A. contends that no indulgence be granted by this Court, in favour of applicant.
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 objection raised by learned A.G.A. in opposition to present application for bail, could not be dislodged by learned counsel for applicant, therefore irrespective of the varied submissions urged by learned counsel for applicant in support of the present application for bail, but without making any comment on the merits of the case, but considring the nature and gravity of offence and the role of the applicant, this Court does not find any good ground to enlarge the applicant on bail.
In view of above, the application fails and is liable to be rejected.
It is accordingly rejected.
Order Date :- 4.3.2024 "
6. Learned counsel for applicant contends that trial of the applicant has already commenced before court below by way of Sessions Trial No. 893 of 2021 (State Vs. Rambeti and others) under Sections 498A, 304B, 323 I.P.C., Police Station-Banna Devi, District-Aligarh now pending in the Court of Additional District Judge/F.T.C-I., Aligarh. Upto this stage, 10 prosecution witnesses have deposed before court below. Referring to the deposition of Tehsildar as well as the Doctor, who conducted, autopsy of the deceased, the learned counsel for applicant made an endeavour to point out that the depositions of aforesaid witnesses are not admissible. On the above premise, he therefore contends that in view of non-availability of cogent and reliable evidence to the effect that the death of deceased is homicidal, the present applicant is liable to be enlarged on bail.
7. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 01.11.2020. As such, he has undergone more than four years and ten months of incarceration. The police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he thus submits 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 the trial.
8. Per contra, the learned A.G.A. for State has vehemently opposed this third application for bail. According to learned A.G.A. even though, this court is a superior court, dictates of prudence require that no such exercise of evaluating the evidence which has emerged during the pendency of trial be undertaken by this Court as any such exercise undertaken by this Court will amount to per-empting the trial and may prejudice the prosecution or the defence. Since prosecution witnesses who have deposed before court below have not been declared hostile, the nature and admissibility of the depositions of prosecution witnesses be left to be decided by court below itself. On the above conspectus, the learned A.G.A. submits that no new, good or sufficient ground has emerged so as to enlarge the applicant on bail.
9. When confronted with above, the learned counsel for applicant could not overcome the same.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant and coupled with the fact that objections raised by the learned A.G.A. in opposition to this third application for bail, as noted herein above, could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present third application for bail but without expressing any opinion on the merits of the case, this court does not find any new, good or sufficient ground so as to enlarge the applicant on bail.
11. As a result, present third application for bail fails and is liable to be rejected.
12. It is accordingly rejected.
Order Date :- 11.11.2024 YK