Allahabad High Court
Madhuri vs State Of U.P. on 30 September, 2020
Author: Vikas Kunvar Srivastav
Bench: Vikas Kunvar Srivastav
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Court No. - 29 [CASE :- BAIL NO. - 8349 OF 2019] Applicant :- Madhuri Opposite Party :- State of U.P. Counsel for Applicant :- Salil Kumar Srivastava Counsel for Opposite Party :- G.A.,Rakesh Kumar Tripathi Hon'ble Vikas Kunvar Srivastav,J.
The present bail application is taken up today for hearing through Video Conferencing.
Learned counsel Sri Salil Kumar Srivastava, Advocate, representing the bail-applicant-Madhuri, learned Additional Government Advocate Sri Santosh Kumar Mishra, Advocate for the State and learned counsel Sri Rakesh Kumar Tripathi, Advocate representing the complainant/informant are connected through video conferencing in the course of virtual hearing of the case.
The present bail application is moved on behalf of the accused-applicant-Madhuri who is involved in Case Crime No. 139 of 2018, under Sections 498-A/304-B, 323 IPC read with Sections 3/4 of Dowry Prohibition Act, Police Station Sakaran, District Sitapur.
The occasion of present bail application arisen on rejection of bail plea of the accused-applicant by Sessions Judge, Sitapur vide order dated 22.05.2019.
As per FIR lodged on 15.11.2018 at 4:45 p.m., the facts as stated by the complainant are that he solemnized the marriage of his grand-daughter Shalini with Atul Shukla as per Hindu rites and rituals with dowry in his capacity. After some days of marriage, Atul Shukla, Hridaynarain, Jitendra and Madhuri (in-laws) started to torture his grand-daughter in connection with demand of additional dowry. On 14.11.2018 at 3:00 p.m. in-laws of her grand-daughter beaten her badly, poured kerosene oil and set her in fire. Thereafter without informing her parents, she was admitted in the district hospital Sitapur wherein she succumbed. Father of deceased-Shalini Devi got the information regarding the incident telephonically. Deceased had an infant girl child of four months.
Reading over the First Information Report, as alleged by father of the deceased and the dying declaration of the deceased recorded by the Tehsildar in the hospital when deceased was under treatment of her burn injuries, he argued that the prosecution case is based on presumption to be raised under Sections 304-B IPC and Section 113-B of the Indian Evidence Act, 1872 against the in-laws for the reason unnatural death of married woman within seven years of her marriage and that soon before her death treated with cruelty in connection with demand of dowry. He vehemently argued that there is no iota of evidence with regard to the demand of dowry on the part of the present accused-applicant who is mother-in-law of the deceased. Except the statement of the informant, the father of the deceased himself, there is no independent witness of treating the deceased before her death with cruelty. In connection with any demand of dowry, neither any complaint in writing throughout her life time is made nor any conversation to the above fact with any person is shown by evidences in investigation.
Learned counsel argued that the present accused-applicant, as the Investigating Officer shown in the sight map prepared by him during investigation, has separate living alongwith her husband whereas the deceased alongwith her husband Atul Shukla was dwelling in another separate house shown in the map, as such question does not arise of torturing the deceased, daughter-in-law by the present accused-applicant.
Learned counsel further argued that so far as dying declaration is concerned, even the name of the present accused-applicant is not taken in participation of the alleged crime of burning her. So far as the allegation of abusing and taunting the deceased is concerned, the same is levelled on the present accused-applicant as the deceased was tutored by her parents. In this connection, he argued that just after the incident of burn by fire, the in-laws brought the deceased in hospital, put her under treatment and she survived till the next day but succumbed of burn injuries and could not survive any more. Therefore, presumption in the absence of evidence as to the demand of dowry, treating with cruelty in connection with the demand of dowry and setting the deceased into fire by the present accused-applicant cannot be raised.
Learned counsel lastly argued that the dying declaration of the deceased wherein she stated about her husband with whom she had no good relations and just before she was set in fire by her husband, a quarrel was going on between them. Therefore, the case is of direct evidence of committing murder punishable under Section 302 IPC and no presumption in the circumstances can be raised against the present accused-applicant under Section 304-B IPC.
On the basis of argument referred hereinabove, learned counsel for the bail-applicant submitted that the present accused-applicant is a lady of old age and have no participation in the burning of the deceased. In the absence of circumstances required to raise presumption under Section 304-B IPC for causing death. She cannot be hold guilty and deserves to be released on bail on this count.
Learned counsel further argued that so far as the status of the accused-applicant is concerned, she has no criminal antecedent. She is a domestic lady having permanent residential address, not in a position to flee away from the judicial process, rather if she is released on bail, she will abide herself from the conditions imposed by the Court with regard to her appearance before the court, as and when required. Moreover, if she is released on bail, it would enable her in putting her defence properly in the course of trial.
Countering the allegations made by learned counsel for the bail-applicant, learned Additional Government Advocate for the State Sri Santosh Kumar Mishra and learned counsel Sri Rakesh Kumar Tripathi representing the complainant submitted that the contention of present accused-applicant as to her has separate living from the deceased and as such, denial from exerting any cruelty, is baseless. In dying declaration itself the deceased has stated that she was residing alongwith her in-laws including mother-in-law, father-in-law and brother-in-law. The dying declaration is believable as it emanates confidence from the statement of the deceased, who very honestly and truly absolved her father-in-law and brother-in-law from any liability in the incident, therefore the dying declaration cannot be said vitiated, by reason of having tutored by the parents. The dying declaration is voluntary spontaneous and untutored, therefore, there is no reason to disbelieve it.
Secondly, learned AGA and the complainant have argued that in case the accused-applicant's version of separate living is also taken as true, then also it cannot be said that the applicant being mother-in-law was not in a position to treat her with cruelty in connection with demand of dowry soon before the death. Therefore, the bail application does not deserve to be allowed.
Having heard learned counsels for the appearing parties, admittedly, the entire prosecution case is based on direct evidence of setting the deceased into fire by the co-accused, 'tul Shukla' (husband of the deceased) and also upon the dying declaration of the deceased. On the careful reading of the dying declaration, prima facie, it seems to have been recorded in the state of sound mind of the deceased, by a Tehsildar in the presence of a doctor. In dying declaration, the deceased-Shalini Devi in unambiguous words and explicitly stated that she cohabiting with husband and her three months' old infant daughter, used to live in the matrimonial house alongwith other in-laws, namely, father-in-law, mother-in-law and brother-in-law. She stated that on 14.11.2018 at about 11:20, she had conversation with her father with regard to a mutual matter between she and her husband. She further stated that due to some disorder in sound recording system of the mobile, her conversation with her father could not be recorded, whereupon the accused, namely, Atul Shukla(husband) became angry as he thought that the conversation was not recorded by the deceased knowingly or deleted. He began to quarrel with the deceased and beat her. In continuation of the same quarrel, he at about 2:00 pm poured kerosene oil upon the deceased and set her into fire and ran out of the house. When she began to cry for rescue running away towards out of the house, then the husband, mother-in-law and elder brother-in-law came to rescue and extinguish the fire. In the last of the statement, she has stated that in the morning of the day of incident, the mother-in-law had told something which she did not like. She was admitted in the district hospital, Sitapur by the husband, mother-in-law and father-in-law. However, she alleged that the mother-in-law also had role in setting her into fire.
On the basis of aforesaid dying declaration, prima facie, there is no incriminating evidence against the present accused-applicant so as to raise any presumption against her of causing dowry death of her daughter-in-law. Moreover, neither in the statement recoded by the Investigating Officer in the course of investigation nor in the dying declaration itself there is any direct evidence as to the participation of the accused-applicant in pouring kerosene oil and setting the daughter-in-law into fire. She being an old and domestic lady has no possibility of fleeing away from the process of law.
Considering the rival submissions of learned counsel for the parties, without expressing any opinion on the merits of the case and considering the nature of accusation, complicity of the accused-applicant, gravity of the offence and the severity of punishment in case of conviction and the period for which she is in jail, I find force in the argument of learned counsel for the accused-applicant. The accused-applicant-Madhuri is entitled to be released on bail in this case. The bail application is allowed.
Let applicant-Madhuri be released on bail in Case Crime No. 139 of 2018, under Sections 498-A/304-B, 323 IPC read with Sections 3/4 of Dowry Prohibition Act, Police Station Sakaran, District Sitapur, on her furnishing a personal bond of Rs. 50,000/- and two reliable sureties of the like amount to the satisfaction of the court concerned subject to following additional conditions, which are being imposed in the interest of justice:-
(i) The applicant shall file an undertaking to the effect that she 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 applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure her presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against her, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant 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 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 her in accordance with law.
Order Date :- 30.9.2020 kkv/ [Vikas Kunvar Srivastav,J.]