Anuj Kumar vs State Of U.P.
2013 Latest Caselaw 1689 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 22
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35368 of 2010
 
Petitioner :- Anuj Kumar
 
Respondent :- State Of U.P.
 
Petitioner Counsel :- Pankaj Bharti
 
Respondent Counsel :- Govt.Advocate
 

 
Hon'ble Karuna Nand Bajpayee,J.

The present bail application has been moved on behalf of Anuj Kumar son of Mainpal Sharma who is presently detained in case crime No. 625 of 2010, under Sections 498-A, 302 I.P.C. relating to P.S. Thana Bhawan, district Muzaffarnagar, after the same was rejected by the Sessions Judge, Muzaffarnaga vide order dated 3.12.2010.

Heard learned counsel for the applicant as well as the learned A.G.A. who has filed the counter affidavit which is taken on record. The applicant does not propose to file any rejoinder affidavit.

The prosecution story as it transpires from the F.I.R. is that the deceased Savita daughter of Rajkumar Sharma was married to the applicant on 21.5.2003 and out of their wedlock two sons were also born. It has been alleged by the first informant who is also the real brother of the deceased, that a month before the fateful day, deceased Savita had come to the house of her parents and had conveyed to her parents the rapacious demand placed by her husband in the form of Rs.2,00000/-. It appears from the contents of the F.I.R. that she was also under the threat of dire consequences in case of non-fulfillment of this demand. According to the version of the F.I.R. The deceased was persuaded to go back to her husband's house and an assurance was given from the parents side to make necessary arrangement in this regard. It has again been emphasized in the F.I.R. that the deceased was very apprehensive about some untoward happening in case her husband's demand remained unfulfilled. It was in this background that on 20.7.2010 there came a telephonic call from one Ankur, who is the Dever of the deceased informing about the death of Savita. After receiving this News the first informant along with other relatives reached the house of the applicant and found that his sisters dead body was lying on the floor exhibiting a full ligature mark on her neck. It was also reported in the F.I.R. that the applicant and his mother had absconded from the spot.

After lodging of this F.I.R. the inquest proceedings took place and autopsy on the deceased body was performed. The doctor has found on the body of the deceased a horizontally placed ligature mark of 11cm x 2cm in size. The trachea rings as well as the hyoid bone, both were found fractured. In the opinion of the doctor, the deceased had been strangulated to death. A perusal of the inquest report also shows that the officer performing the inquest had also noted the fact of bleeding from the nose.

The submission made before us by the applicant's counsel is that the deceased died after more than seven years of marriage and that places the applicant beyond the mischief of Section 304-B I.P.C. No statutory presumption can be drawn against the applicant for having caused the death of the deceased. The contention is that the case has to be adjudged on the footing of the normal cases of murder where accepted standard of proof beyond reasonable doubt has to be applied. According to counsel, there is no such evidence collected by the I.O. which may fix up the guilt of the accused-applicant. There is neither eyewitness account of murder nor any such circumstantial evidence which may exclude all hypothesis consistent with the innocence of the accused. There is no reliable evidence furnished in proof of the alleged demand of Rs.2,00000/-. It has also been contended that there is no other injury on the body of the deceased which may indicate any violence perpetrated on her, nor is there any such feature on the body which may indicate resistance put by the deceased, in case she was strangulated. It has been contended that the deceased suffered from mental disorder and it was because of the same that she committed the suicide.

A.G.A. Vinay Shanker Singh has vehemently opposed the prayer for bail. He has emphasized that the applicant has not furnished any material good, bad or indifferent, to indicate that the deceased was actually afflicted with any kind of mental disorder. There is no material furnished by the applicant that she was ever treated for this disorder at any level by any doctor anywhere. It has also been emphasized that according to the para 7 of the bail application, it has been stated that after the commission of suicide the dead body of the deceased was brought down by the applicant with the help of neighbours. According to A.G.A., at least this has been admitted categorically by the accused-appellant that soon after commission of the suicide, if at all she committed it, the applicant was very much present in the house. This has also been contended on behalf of the State that the factum of death of the deceased inside the house of the applicant is an admitted fact. The A.G.A. emphasized before the court that the post-mortem report rules out the possibility of the commission of suicide by the deceased. According to A.G.A. the fracture of the hyoid bone and  the fracture of the larynx or trachea are very rarely found in cases of hanging. He has placed before the Court Modi's medical jurisprudence where it has been elucidated in great detail as to what shall be the features present in case a man committed suicide and what shall be the features present on the dead body if death is due to strangulation. According to Modi's jurisprudence hyoid bone, larynx and trachea are rarely found fractured in case of hanging. Though these rare fractures are sometimes found in case of judicial hanging. To the contrary the larynx and trachea are commonly found fractured along with fracture of hyoid bone in case of strangulation. It has also been pointed out by the A.G.A. that bleeding from the nose is also a feature compatible with strangulation and is only rarely found in cases of hanging. According to A.G.A., during inquest proceedings the bleeding from the nose was clearly observed and the same was also mentioned by the concerned police officer performing the inquest proceedings.

I have considered the rival submissions made on behalf of both the sides and have perused the record.

It is manifestly clear that the death took place within the precincts of the house where the accused resided along with his wife. The time of incident is such that the death took place even before the sun could rise. Even in the absence of any positive prosecution evidence of applicant's presence in the house, the court has reason to presume his presence in the house at least in the wee hours of the day. The applicant does not even plead his absence from the house at the time of his wife's death.

In this context the court can also make adequate use of Section 114 of the Indian Evidence Act1872 which reads as follows:

"114. Court may presume existence of certain facts- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case."

It also seems a fit case where the applicant may be called upon to answer and rebut the burden which cast upon him under Section 106 of the Indian Evidence Act which reads thus:

"106. Burden of proving fact especially within knowledge-When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him"

The circumstances of the case are such that they look sufficient to persuade the court to believe that the event of deceased Savita's death comes within the 'especial knowledge' of her husband. Yet the event of wife's death remains completely unexplained. The theory suggested by the applicant about the possibility of committing suicide is feeble and fragile. It is almost ruled out by the Medical Evidence which is more in keeping with a homicidal death. The dead body reveals the classic features which are typically found in the event of death by strangulation. It seems to be a case of either no explanation furnished by the accused about the circumstances in which the deceased met with her death or a case of rendering false explanation about the same. In both these events the applicant is liable and has to be subjected to adverse inference at this stage.

There is one more disturbing circumstance of which the Court has taken cognizance of . If it is a fact that Savita was strangulated to death then the first thing which is most naturally expected from the husband or other in-laws is that they will take immediate steps to report this matter to the police and request initiation of the investigation against the perpetrators of the crime. If the deceased actually died as a result of strangulation, which is a medically proven fact, who could be more aggrieved by this incident than the husband himself. There is nothing to indicate that the husband gave any telegram to the authorities or filed any complaint in the court or lodged any F.I.R. regarding the murder of his wife. The court does not see any reason as to why the police shall not register the information if the applicant wanted to lodge the same in the police station. In fact there are many forums where anybody who is aggrieved by the refusal of local police to register the information can seek the redress. Absence of any steps taken against any body who might be suspected as a possible assassin is by itself a highly incriminating circumstance against the applicant. The post crime conduct of the applicant in as much as keeping complete reticence over the murder of his wife by itself is a strong circumstance to be reckoned against him in order to draw the inference of guilt.

It is possible that in future the applicant may come up and furnish such facts and circumstances relating to the case which may help the court to evaluate the hypothesis suggested by the applicant regarding his own innocence. If he succeeds at any time in future, it shall be open to reconsider the question of his bail. As of now, I do not find any adequate ground to release him on bail.

It goes without saying that any observations made in this order must not be construed to the prejudice of the applicant at the time of final adjudication of guilt or innocence, as they are obviously confined to the purposes of disposing the point of bail.

The bail application stands rejected.

Order Date :- 6.5.2013

Rkb