Allahabad High Court
Ram Awtar vs State Of U.P. on 23 May, 2022
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6429 of 2022 Applicant :- Ram Awtar Opposite Party :- State of U.P. Counsel for Applicant :- Amar Nath Mishra,Nanhe Lal Tripathi,Satyendra Kumar Mishra Counsel for Opposite Party :- G.A. Hon'ble Mohd. Faiz Alam Khan,J.
Rejoinder affidavit filed on behalf of the applicant is taken on record.
Heard Shri Nanhe Lal Tripathi, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Ram Awtar for grant of bail, in Case Crime No.268 of 2020, under Sections 498-A, 304-B I.P.C. and 3/4 of the Dowry Prohibition Act, Police Station Jakhaura, District Lalitpur, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that the applicant has been falsely implicated in this case and he has not committed any offence as claimed by the prosecution.
It is further submitted that in fact the deceased had died due to a train accident. At the time of inquest of the dead body of the deceased, her father namely Kunwar Lal Yadav was present and had not raised any objection pertaining to the cause of death of the deceased and in fact he was of the opinion that the deceased had died in a train accident, however, subsequently after 2 months and ten days of the incident on an ulterior motive, he lodged the instant F.I.R. and thus the F.I.R. is highly belated and could not be believed. It is also submitted that the postmortem report of the deceased would also reveal that she had met with a train accident and the same was the cause of her death and she was never subjected to any cruelty in lieu of demand of dowry and the allegation of demand of dowry and committing cruelty thereof with the deceased are after thought.
It is next submitted that during the course of trial, informant namely Kunwar Lal Yadav, his wife namely Smt. Gayatri Devi and Kumari Roshani had been testified as P.W.-1, P.W-2 and P.W-3 respectively and though P.W.-1 Kunwar Lal Yadav (informant) in his examination-in-chief had supported the fact of submitting 'tehreer' on the basis of which the F.I.R. was lodged, but in his cross examination, he had not supported the version of the prosecution and though, strangely was not declared hostile, but cross examined by the public prosecutor, wherein the informant has denied his statement recorded under Section 161 Cr.P.C. by the investigating officer and stated that he had lodged the F.I.R. on the persuasion of the villagers. Smt. Gayatri, who has been testified as P.W.-2, has also not supported the version of the prosecution and she has been cross examined by the public prosecutor, wherein she had also disowned her statement recorded under Section 161 Cr.P.C.
Highlighting the above factual matrix, it is vehemently submitted on behalf of the applicant that to draw a presumption under Section 113-B of the Indian Evidence Act, the prosecution is obliged to prove the initial facts and if the prosecution is failing in its duty to prove the initial facts on the basis of which a presumption could be drawn under Section 113-B of the Indian Evidence Act then the applicant/accused is not obliged to negate the same and therefore, it is a case, where the death of the deceased has been caused due to an accident and she was never subjected to any cruelty in lieu of demand of dowry.
It is next submitted that applicant is in jail in this case since 14.02.2021 and there is no apprehension that after being released on bail the applicant may flee from the course of law or may otherwise misuse the liberty. The applicant is ready to cooperate in the trial and having regard to the fact that three prosecution witnesses have not supported the version of the prosecution, chances of conviction of the applicant are highly remote.
Learned A.G.A., however, opposes the prayer of bail of the applicant and submits that it is not disputed that three prosecution witnesses have not supported the version of the prosecution, but the allegations against the applicant are of heinous in nature and therefore, he is not entitled to be released on bail specially in the background of the fact that the applicant is the husband of the deceased.
Having heard learned counsel for the parties and having perused the record, it is evident that the incident had occurred on 21.10.2020, however, F.I.R. of the same has been lodged on 31.12.2020. Attention of this Court has also been drawn on the fact that at the time of inquest of the dead body of the deceased, informant namely Kunwal Lal Yadav was present and he was of the opinion that the deceased had met with a train accident, however, subsequently in the F.I.R. new story has been developed. Perusal of the statement of three prosecution witnesses namely Kunwar Lal Yadav, Smt. Gayatri Devi and Kumari Roshani would reveal that they have not supported the version of the prosecution while it was the P.W.-1 - Kunwar Lal Yadav, who disowned his statement recorded under Section 161 Cr.P.C. in his cross examination. The other witnesses namely Smt. Gayatri Devi and Kumari Roshani had also disowned the version of the prosecution in their examination-in-chief.
It has been vehemently submitted on behalf of the applicant that the initial duty of the prosecution is to prove its case on the basis of which a presumption could be drawn under Section 113-B of the Indian Evidence Act and if the prosecution is failing in its duty to prove the initial facts then no such presumption could be drawn under Section 113-B of the Indian Evidence Act and since the witnesses of the prosecution have chosen not to support the version of the prosecution, the possibility of the conviction of the applicant is very remote. It is submitted that the applicant will remain present before the trial court and will not influence the other prosecution witnesses. Applicant is in jail in this case since 14.02.2021. The presence of the applicant could be secured before the trial court by placing adequate conditions.
Having regard to the overall facts and circumstances of the case and keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.
Let the accused/applicant- Ram Awtar involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not attempt to make any contact with other prosecution witnesses, whose testimony is remained to be recorded and the violation of this condition alone would be a sufficient ground for the trial court to cancel the facility of bail extended by this Court to the applicant.
(ii) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression of this Court on the merits of the case.
Order Date :- 23.5.2022 Anupam S/-