Allahabad High Court
Shivam vs State Of U.P. on 26 July, 2023
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Neutral Citation No. - 2023:AHC:149151 Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24461 of 2023 Applicant :- Shivam Opposite Party :- State of U.P. Counsel for Applicant :- Santosh Kumar Tripathi Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.
1. Rejoinder Affidavit filed by learned counsel for applicant in court today is taken on record.
2. Heard Mr. Santosh Kumar Tripathi, the learned counsel for applicant and the learned A.G.A. for State.
3. Perused the Court.
4. This application for bail has been filed by applicant Shivam, seeking his enlargement on bail in Case Crime No. 305 of 2021 under Sections 498A, 304B, 323 I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Lalganj District- Mirzapur during the pendency of trial.
5. It transpires from record that marriage of applicant Shivam was solemnized with Bandana the daughter of first informant on 29.04.2026. However, just after expiry of a period of five years and seven months from the date of marriage of applicant an unfortunate incident occurred on 10.12.2021 in which the daughter-in-law of applicant namely Bandana consumed some poisonous substance and ultimately she died.
6. It is the case of applicant that the information regarding aforesaid incident at the police station concerned was not given by applicant or any of his family members but by Deepak (brother of the deceased). Therefore Deepak, the brother of the deceased lodged an F.I.R. dated 12.12.2021 which was registered Case Crime No.305 of 2021 under Sections 498A, 304B, I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Lalganj District- Mirzapur. In the aforesaid F.I.R. three persons namely Shivam (applicant herein)/husband, Kishore (cousin father in law) and Dashrath (devar) of the deceased have been nominated as named accused.
7. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of Bandana (deceased), the sister of the first informant was solemnized with applicant. However the sister of first informant was hackled for money by applicant. Ultimately Vandana the sister of the first informant has been put to death by named accused.
8. The inquest (Panchnama) of the body of deceased was conducted on the information of Deepak.. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased could not be ascertained. Resultantly, the nature of death of deceased could not be categorised i.e. whether it is homicidal or suicidal. Thereafter, post-mortem of the body of deceased was conducted. The Doctor, who conducted autopsy of the body of the deceased did not find any external or internal ante mortem injury on the body of the deceased. The Autopsy Surgeon however could not ascertain the cause of death of the deceased. Accordingly the viscera of deceased was preserved. Subsequently, viscera report of the deceased dated 19.07.2022 was submitted. As per the viscera report, a Foreign Chemical Compound i.e. Aluminium Phosphide was fond in the body parts of the deceased, which were sent for Chemical Analysis.
8. Subsequent to the aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. During course of investigation, he examined the first informant and other witnesses under Section 161 Cr.P.C., who have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of only two of the named accused namely Shivam (husband) and Dashrath (Devar of deceased) is established in the crime in question. He accordingly submitted the charge-sheet dated 06.11.2022 whereby named accused Shivam and Dashsrath have been charge sheeted whereas the other two named accused has been exculpated.
9. Learned counsel for applicant submits that applicant is the husband of deceased. Though he is a named as well as charge sheeted accused yet he is liable to be enlarged on bail. Occurrence giving rise to present application has occurred after five years and seven months from the date of marriage of applicant with the deceased. With reference to the post-mortem report, the learned counsel for applicant contends that bonafide of applicant is also explicit from the fact that no internal or external ante mortem injury was found on the body of deceased. It is then submitted that the deceased was a short tempered lady and she has taken the extreme step of terminating her life by consuming a poisonous substance herself. According to the learned counsel for applicant, upto this stage it cannot be said that the deceased has committed suicide on account of an immediate act of applicant. No abetment, instigation or conspiracy could be inferred against applicant from the record either. Allegations with regard to demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non-fulfilment of additional demand of dowry are vague as they are devoid of material particulars. As such, the same are liable to be ignored in view of the law laid down by Apex Court in Kahkashan Kausar @ Sonam and others Vs. State of Bihar and Others, (2022) 6SCC 599. Even otherwise applicant cannot be said to be the beneficiary of alleged demand of dowry. The police report (charge sheet) under Section 173 (2) has already been submitted therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has merged necessitating the custodial arrest of applicant during the pendency of trial. To buttress his submission, he has relied upon the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5). Considering the nature of death of deceased, the applicant is not liale to be awarded the maximum sentence (life imprisonment) for the alleged crime. On the above premise, he submits that the applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.
10. Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since the applicant is husband of the deceased, a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The deceased has committed suicide on account of the act of named as well as charge sheeted accused. The death of the deceased is an unnatural death. Occurrence has taken place in the house of applicant and within seven years of the marriage of the deceased, therefore, the burden is upon the applicant to explain the manner of occurrence as well as his innocence in terms of Section106 and Section 113B of Evidence Act. However, applicant has miserably failed to discharge the said burden. He therefore submits that applicant does not deserve any sympathy of this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.
11. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that prima facie as per post-mortem report, the death of the deceased is a suicidal death, the deceased has not sustained any external or internal ante mortem injury on her body, which go to show the bonafide of the applicant, the allegations made in the F.I.R. regarding demand of additional money and commission of physical and mental cruelty upon deceased on account of non-fulfilment of additional demand of money are vague and bald allegations as the same are devoid of material particulars, as such, the same are liable to be ignored, in view of the judement of the Supreme Court in K. Kausar @ Sonam and others(supra), the police report 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 stand crystallised, in spite of the fact that charge-sheet has been submitted against applicant, the learned AG.A. could not point out any such circumstance from the record necessitating the custodial arrest of the applicant, judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (paragraph 5), the clean antecedents of applicant, the period of incarceration undergone. the learned A.G.A. could not point from the record that applicant has abeted, instigated or conspired in the crime in question or the deceased committed suicide on account an immediate act of applicant, in view of the nature of death of the deceased, the applicant is not liable to be awarded the maximum punishment of life imprisonment for the alleged offence. the clean antecedents of applicant and the period of incarceration 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- Shivam ,involved in aforesaid case crime number be released on bail on his 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.
15. 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 :- 26.7.2023 YK