Anand Dubey vs State Of U.P.
2016 Latest Caselaw 5339 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?A.F.R. 
 
Court No. - 52
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40772 of 2015
 

 
Applicant :- Anand Dubey
 
Opposite Party :- State Of U.P.
 
Counsel for Applicant :- Manish Tiwary,Anurag Shukla,Ashwini Kumar Awasthi
 
Counsel for Opposite Party :- G.A.,Irfan U Huda
 

 
Hon'ble Karuna Nand Bajpayee,J.

Counter affidavit filed by Sri Irfan U. Huda, learned counsel for the complainant is taken on record.

Heard Sri Gopal S. Chaturvedi, learned Senior counsel assisted by Sri Anurag Shukla, learned counsel for the applicant,  Sri Irfan U. Huda, learned counsel for the complainant  and the learned A.G.A. for the State.

Submission of learned counsel for the applicant is that the incident is said to have taken place on 17.11.2014 but the FIR of the case has been lodged on 25.2.2015 on the basis of an application dated 13.2.2015. It has been further pointed out that according to the version of the FIR itself, the information about the deceased having caught fire  was communicated to the parents of the deceased by the applicant's side and it is not a case where the incident of burning was concealed from the  parents.  It has been further pointed out that this is the admitted case of the prosecution, and the first informant has also admitted this fact, that on getting the information the first informant had reached the matrimonial home of the deceased  and had gone to the hospital where she had been admitted by that time and had found the deceased being treated. Further submission is that during the period when the deceased was admitted in the hospital, the dying declaration of the deceased was also recorded. The attention of the Court was drawn to the dying declaration of the deceased, which is Annexure-3 to the bail application, according to which, the version of the incident as narrated by the deceased was that on 16.11.2014 at about 7.00-8.00 p.m., while she was in the kitchen she accidentally caught fire. No allegation was made by the deceased against applicant or anyone else of his family. It was also stated by the deceased that after she caught fire her husband rushed to douse the fire and in that process he also received burn injuries.   In this regard, the attention of the Court has been drawn towards Annexure-4 of the bail application, which is in the form of several medical papers regarding the treatment of burn injuries which were received by the applicant. Further submission  of counsel is that subsequently in order to give better treatment she was being taken to Lucknow but she succumbed in the way to the injuries and died. The contention raised by the learned counsel for the applicant is that had there been any truth in the allegation made against the applicant then it is wholly incomprehensible as to how and under what circumstances, the First Information Report was not lodged against the applicant earlier by the first informant, who was very much present there even before  the deceased died. Much emphasis has been laid by the learned counsel for the applicant on the extra-ordinary delay in lodging the FIR. Submission is that the yawning gap between the occurrence and the lodging of the FIR is by itself sufficient to demonstrate that the version given in the FIR is nothing but an out-come of confabulation, deliberation and afterthought which by itself denudes the  prosecution version from all its  credibility.  Further submission is that had there been any ill-intention on the part of the applicant and had he had any guilty  conscience then there was no question for him to communicate  the information of incident to the parents of the deceased and thereby give the opportunity to the first informant to come and talk to his daughter about the incident. It is further submitted that as the deceased had nothing  to speak against the applicant, the applicant also had no reason to hide the incident from her parents. In fact as the first informant also had nothing to report against the applicant, he did not lodge any FIR for almost three months.  For pure emotional reasons,even the post mortem of deceased was not got done because as a mark of respect it was a joint decision of first informant and applicant's family not to subject the deceased to any further mutilation. It was only long after the occurrence that present FIR was lodged with all sorts of mendacious allegations. The conduct of the accused giving immediate information to the parents is by itself a strong circumstance to indicate his innocence and bonafides. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. It has also been submitted that the applicant is languishing in jail since 24.7.2015 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Sri Irfan U. Huda, learned counsel for the complainant has opposed the prayer for bail and has submitted that the incident had taken  place initially in the evening of 16.11.2014  but the medical papers indicate that the deceased was admitted to the hospital on the next day, which indicates that medical succour was not provided in time to the deceased. It has been further submitted that the deceased was not discharged from the hospital with the consent or referral of the Doctor  but yet she was taken away from the hospital and she died on the way to Lucknow and such an act of accused was not proper and in turn contributed to the death of the deceased. It has been further submitted by the learned counsel for the complainant that initially the burns received by the husband were said to have been 15% but the subsequent medical papers of the hospital at Lucknow where the applicant was treated would indicate that his burns have been shown to be about 40%. Learned counsel for the complainant has tried to argue that it indicates that there is deliberate attempt on the part of the applicant to exaggerate his own injuries and thereby raise a false defence plea in his favour.

Perused the record.

The final verdict about the guilt or innocence of accused can be arrived at only through a proper trial but after perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

Let the applicant Anand Dubey involved in Case Crime No. 142 of 2015 u/ss 498A, 304B,201 IPC and Section 3/4 of Dowry Prohibition Act, P.S. Dhoomanganj District Allahabad be released on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

(2) The applicant will personally appear on each and every date in the court and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.

Order Date :- 20.8.2016

CPP/-