Veer Pal vs State Of U.P.
2015 Latest Caselaw 392 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 

 
Court No. - 55
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10196 of 2015
 
Applicant :- Veer Pal
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Ajay Kumar
 
Counsel for Opposite Party :- Govt. Advocate
 

 
Hon'ble Harsh Kumar,J.

Heard learned counsel for the applicant, learned counsel for the complainant, learned A.G.A. and perused the record.

Learned counsel for the applicant contended that he has been falsely implicated in this case for dowry death of his wife; that the F.I.R. has been lodged with inordinate delay of about two weeks; that the applicant neither made any demand of dowry from his wife nor treated her with cruelty in connection with demand of dowry nor caused her dowry death; that the wife of applicant accidentally sustained burn injuries during his absence; that on 19.12.2014, F.I.R. was lodged by father-in-law of applicant against the applicant and others with false allegations under sections 498-A, 304-B IPC and ¾ D.P. Act; that after completion of investigation, the offence under sections 304-B IPC was not found to be made out, as in dying declaration, the deceased has stated to have sustained burn injuries accidentally and has no complaint against any person of her sasural; that so the charge sheet has been filed only against applicant husband under section 498-A IPC and ¾ D.P. Act; that the applicant has no criminal history; that the applicant undertakes that he will not make misuse the liberty of bail; that the applicant is in custody since 19.1.2015.

Learned A.G.A. and Sri Satyendra Pratap Singh, learned counsel for the complainant opposed the prayer of bail and contended that the deceased was being treated with cruelty in connection with non-fulfillment of demand of dowry and her death has taken place due to burn injuries otherwise than under normal circumstances within five years of marriage and there is presumption of dowry death against the applicant husband under section 113(B) of Indian Evidence Act; that there is evidence on record that the applicant used to demand Rs.1,00,000/- and gold chain and for non fulfillment of above demands of dowry, she was earlier beaten and ousted from the house; that after marriage, the deceased was beaten with bricks during pregnancy and was ousted from home in respect with which incident, an application was given to S.O. concerned and when no action was taken, she moved an application to S.P., Pilibhit on 3.9.2011; that due to atrocities of applicant, the deceased had suffered miscarriage of preganancy and later on with intervention of certain persons some compromise took place and the deceased was fetched by applicant; that thereafter mother-in-law of the deceased was elected village pradhan upon which, the frequency and degree of cruelty were enhanced; that the deceased had filed complaint case no.840 of 2012 against the applicant in which vide order dated 22.4.2013, the applicant and others were summoned for trial under sections 498-A IPC and ¾ D.P. Act; that the applicant was not taking care of deceased so she was also compelled to file Maintenance Petition No.59 of 2013 in the Family Courts, Pilibhit for maintenance under section 125 Cr.P.C.; that the applicant is a very shrewed person and about ten months before the incident of dowry death, he entered into a compromise with the deceased before the Court regarding reconciliation of marriage and agreement to live together; that above compromise was accepted by Family Court, Pilibhit vide order dated 12.4.2014; that inspite of compromise before the Court on 12.4.2014 though the deceased was fetched by applicant but he and his family members continued the same behavior of demanding dowry and treating her with cruelty; that on 5.12.2014, the applicant in a planned manner poured kerosene oil over the deceased, put her on fire, and did not give any information of burn injuries sustained by deceased to first informant, police or anybody else; that the applicant did not take any step or care to provide medical aid/treatment to the deceased and she was got admitted in District Hospital, Pilibhit by her father-in-law; that Annexure No.2, page 29 shows that the deceased was brought to District Hospital with 100% burns caused by kerosene oil, as mentioned in the medical papers of District Hospital, Pilibhit; that in such a bad condition, the deceased was not and could not have been in a position to speak or give any statement and the dying declaration of deceased Sunita Devi alleged to be recorded at 5:40 p.m. on the same day of incident i.e. on 5.12.2014 is false and concocted and is not admissible in evidence; that the deceased sustained with 100% burn injuries on 5.12.2014 and her treatment continued upto 17.12.2014 i.e. for about 12 days; that during the above period of 12 days, the condition of deceased could not improve to an extent that she could have made any statement and for that reason no statement under section 161 Cr.P.C. of the deceased was recorded by Investigating Officer; that the dying declaration is false on the face of its record and is in contradiction with the medical evidence on record, because as per dying declaration the deceased sustained burn injuries at the time of boiling milk on gas, while the medical papers of District Hospital, Pilibhit specifically states that the deceased had 100% burns caused by kerosene oil and due to burn injuries her general condition was very very low and even the mark of identification was not traceable; that it shows the deceased was not in a position to give any statement and the dying declaration has been prepared falsely for the benefit of accused; that the investigation of the case has been done under the influence of the accused-applicant and the Investigating Officer in connivance with the applicant has submitted charge sheet only under sections 498-A IPC and ¾ D.P. Act ignoring the fact of dowry death; that the allegations of demand of dowry and treating the deceased have been found correct by Investigating Officer and since the death of deceased has taken place due to burn injuries in other than normal circumstances within seven years of marriage there is presumption of dowry death against husband, the applicant within the provisions of section 113-B of Evidence Act; that there is evidence of cruelty soon before her death as after long litigation she was fetched by applicant under the garb of compromise in planned manner for causing her dowry death; that in the circumstances irrespective of the fact that charge sheet has been submitted under sections 498-A IPC and ¾ D.P. Act, since the F.I.R. was lodged also under section 304-B, the applicant is not entitled for bail in this case of dowry death.

Upon hearing the learned counsel for the parties and perusal of record, I find that it is not disputed that there are allegations of demand of dowry and cruelty in connection therewith along with allegations of some previous incidents with court cases as well as litigation before the Court. It is also not disputed that marriage between the deceased and the applicant took place about five years ago and after alleged ouster of deceased in the year 2011 when she allegedly suffered injuries and miscarriage of pregnancy, a compromise took place between the parties after about three years on 12.4.2014 before Family Court, Pilibhit in Maintenance Petition No.59 of 2013 as well as in another complaint case no.840 of 2012, under sections 498-A IPC and ¾ D.P. Act. It may not be disputed that the death of Sunita Devi has occurred due to burn injuries, which may not be considered a natural death and it is a case of death, occurred otherwise than under normal circumstances within seven years of marriage. The papers of medical treatment of deceased filed as Annexure No.2 to the affidavit in support of bail application at page 29 shows that the deceased was brought to hospital by her father-in-law at 3:45 p.m. on 5.12.2014 with 100 % burn injuries caused by kerosene and her general condition was very very low, pulse rate and B.P. could not be recorded and even the identification mark was not traceable. In the circumstances, in absence of any reliable evidence it may not be presumed that the deceased would have been able to speak or give statement at the time. The dying declaration of the deceased on record shows that it has been recorded on the same day at 5:40 p.m. in which the deceased is stated to have been caught with fire at the time of boiling milk on kitchen at gas at about 1:00 p.m. and she has no complaint against any person of her sasural. In the circumstances when correctness of dying declaration is doubted, it can be decided only upon evidence during trial.

Whatever may be the correctness of facts as have been contended by learned counsel for the applicant or first informant, or have been discussed hereinbefore, it may not be forgotten that this is an application for bail moved under sections 498-A IPC and ¾ D.P. Act before this Court, in Case Crime No. 1049/14 under Sections 498A, 304-B IPC and ¾ D.P. Act in which charge sheet has been filed only under Section 498-A IPC and ¾ D.P. Act. Whether the Investigating Officer investigated the matter in fair manner or under influence of the accused and whether he cared to take notice of material contradictions between the medical papers and the alleged dying declaration and as to whether the deceased was ever able to speak since sustaining 100% burn injuries till her death are all the matters which are not required to be considered or looked into by this Court at the time of disposal of bail application. The disposal of bail, on such issues may amount to exceeding the jurisdiction conferred under provisions of Chapter XXXIII of the Code of Criminal Procedure. The trial court if finds that some other offence is made out against an accused under which section charge sheet has not been submitted, it has every power to frame charge or take necessary action. The trial court is also empowered to take action, if any, required against the Investigating Officer or recommend any disciplinary action against him for his carelessness in performance of duty or for submitting charge sheet for offences of demand of dowry by accused applicant and treating the deceased with cruelty by him, but not submitting it under Section 304-B for dowry death, despite death occurred otherwise than under normal circumstances due to burn injuries within seven years of marriage.

In latest pronouncement, in a similar matter, in the case of State of Gujarat Vs. Girish Radhakrishnan Varde AIR 2014 SC page 620, Hon'ble the Apex Court has held that

"The correct stage for addition or subtraction of Sections of Indian Penal Code in charge sheet is at the time of framing of charges, in spite of the fact that offences can be held to have been made out from the assertions made in F.I.R.

Even if the Investigating Officer has not submitted charge sheet on material facts and evidence in certain sections, or the accused says that no case is made out in several sections, the Magistrate cannot permit to add any sections therein or subtract any section therefrom before the time of framing of charges."

Upon hearing the submissions made by either party and considering the material brought before the Court and in view of the discussions made above and considering the complicity of offences, severity of punishment under Sections 498-A IPC and ¾ D.P. Act as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I find it a fit case for bail.

Let the applicant Veer Pal be released on bail in Case Crime No.1049 of 2014, under Sections 498-A IPC and ¾ D.P. Act, P.S. Neuriya, District Pilibhit, on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

(i) The applicant will co-operate with the trial and remain present personally on each and every date fixed for framing of charges, recording of evidence as well as recording of statement under Section 313 Cr.P.C. or through counsel on other dates and in case of absence without sufficient cause, it will be deemed that he is abusing the liberty of bail enabling the court concerned to take necessary action in accordance with the provisions of Section 82 Cr.P.C. or Sections 174A and 229A I.P.C.

(ii) The applicant will not tamper with the prosecution evidence and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant will not indulge in any unlawful activities.

(iv) The applicant if has any pass port, he may surrender the same before the Magistrate concerned within two weeks from the date of release and if not, will give an undertaking on affidavit that he will not leave the country without prior permission of the Court.

(v) The applicant will give attendance in the Police Station Neuriya, District Pilibit on first day of every calendar month, till final disposal of trial.

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 and send the applicant to prison.

In case, the trial court finds any evidence against him and frames charges under Section 304-B IPC or some other sections, not mentioned in charge sheet, he shall surrender before the Court and upon moving by him a bail application, it will be considered afresh under such sections, irrespective of the fact that he has been granted bail.

It is also made clear that any observation made in the body of order shall not be binding on either of the parties and the case as well as any subsequent bail application will be considered afresh on its merits.

Order date:-6.5.2015

Tamang