Raj Bahadur And Another vs State Of U.P.
2022 Latest Caselaw 1064 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40210 of 2021
 

 
Applicant :- Raj Bahadur And Another
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mahadeo Singh Chandel
 
Counsel for Opposite Party :- G.A.,Rajesh Kumar Singh
 

 
Hon'ble Sanjay Kumar Pachori,J.

Rejoinder affidavit filed today by learned counsel for the applicants is taken on record.

Heard Shri Mahadeo Singh Chandel, learned counsel for the applicants, learned A.G.A. for the State, Shri Rajesh Kumar Singh, learned counsel for the first informant and perused the material on record.

The present bail application has been filed on behalf of applicants Raj Bahadur (father-in-law) and Smt. Bisaniya (mother-in-law) under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 485 of 2020 for offence punishable under Sections 498A, 304B, 316 of the Indian Penal Code and Section 3/4 Dowry Prohibition Act, registered at Police Station Kotwali Nagar, District Banda, during pendency of the trial, after rejecting the bail application of the applicants by Sessions Judge, Banda vide order dated 2.9.2021.

Brief facts of the case are that the First Information Report dated 5.7.2020 has been lodged by mother of the deceased against the applicants and nine other family members of the applicants stating that the marriage of her daughter Neelam was solemnized with co-accused Shyam Babu on 18.1.2019. She spent Rs. 4,50,000/- cash including the articles with motorcycle in a group marriage of Kushwaha Society. After the marriage of the deceased, other co-accused persons were not satisfied with the dowry given by the first informant and due to this reason the applicants and other co-accused persons started to harass the deceased. It is further alleged that the deceased told about the additional demand of dowry of Rs. 1,40,000/- in cash to the first informant and other family members of the first informant. Husband of the first informant was working in brick kiln in Haryana and he deposited in the account of co-accused Shyam Babu Rs. 40,000/-, Rs. 20,000/- and Rs. 40,000/- in the year 2020. Only Rs. 40,000/- was to be given. On 30.6.2020 they harassed the deceased due to demand of Rs. 40,000/-. At that time husband of the first informant was in Haryana. At about 1.45 p.m. co-accused Shyam Babu informed the husband of the first informant about the illness of his daughter and after sometime co-accused Shyam Babu again informed through phone that the deceased had died. When he asked about the cause of death, the phone was disconnected. Next day morning first informant Bituliya and 3-4 family members reached on the spot, she informed the police and inquest was conducted. The deceased was pregnant of eight and half months. The applicant and other co-accused persons committed murder of a child in the womb.

Before lodging of the first information report, inquest of the body of the deceased was conducted on 1.7.2020 at 1.55 p.m. on the basis of information given by the mother of the deceased. As per inquest report, one contused swelling was found on the back of the person of the deceased. Postmortem of the body of the deceased was conducted on 1.7.2020 at 3.45 p.m. As per postmortem report, cause of death could not be ascertained and viscera was preserved. As per postmortem report, one contusion 5 cm. x 2 cm. on left parietal occipital region was present on the person of the deceased and eight and half months fetus was also present. After recording the statements of the first informant, her husband and other prosecution witnesses, charge sheet has been submitted against the applicants and co-accused Shyam Babu on 29.7.2021. The Investigating Officer exonerated eight other family members of the applicants (two brother-in-laws, three sister-in-laws, two niece and one Devar). The applicants were arrested on 26.7.2021.

Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case with ulterior motive and due to matrimonial discord. It is further submitted that the applicants are father-in-law and mother-in-law of the deceased. Marriage of their son was solemenized on 18.1.2019 in a group marriage of Kushwaha Society without any demand of dowry. It is further submitted that as per inquest report, one contused swelling was found on the person of the deceased, but as per postmortem report, cause of death could not be ascertained by the doctor and viscera was preserved. It is further submitted that one contusion was found on left parietal occipital region. It is further submitted that co-accused Shyam Babu informed the first informant and her husband about the death of their daughter Neelam. It is further submitted that father of the deceased Chunnu @ Kuber has taken Eicher Tractor by loan and for the same purpose, husband of the first informant sent Rs. 38,800/- and Rs. 40,000/- to deposit in the loan account of Chunnu @ Kuber, true copy of the receipt has been annexed as Annexure-12 to the affidavit of bail application. It is further submitted that general allegation of demand of dowry and harassment has been levelled against the applicants. No specific role or involvement has been attributed to the applicants. It is further submitted that the applicants have no concern with co-accused Shyam Babu and they are living separately with their unmarried son Nand Kishore outside of village in the field. It is further submitted that the applicants are aged about 60-65 years.

He has next argued that the applicants have no previous criminal history and if the applicants are released on bail, they shall not misuse the liberty of bail.

Per contra, learned A.G.A. and learned counsel for the first informant have supported the order passed by the Sessions court and vehemently opposed the prayer for grant of bail to the applicants and submits that the applicants have been arrested after persuasion of the petitions in the High Court. They submit that the allegations involved are very serious in nature and the delay in lodging the FIR cannot be said to be fatal to the case at this juncture while considering the application of bail. But they could not point out any material to the contrary. They further submit that in case the applicants are released on bail, they will again indulge in similar activities and will misuse the liberty of bail.

After considering the facts of the present case it prima facie appears that;

(a) Applicants are father-in-law and mother-in-law of the deceased;

(b) Marriage of their son, co-accused Shyam Babu was solemnized with the deceased on 18.1.2019 and a group marriage of Kushwaha Society;

(c) Co-accused Shyam Babu has informed the first informant about the incident;

(d) General allegation of demand of dowry and harassment has been levelled against the applicants;

(e) No specific role or involvement has been attributed to the applicants;

(f) In viscera report, organochloro insecticide poison was found;

(g) As per inquest report, one contused swelling was found on the back of the person of the deceased only and as per postmortem report, one contusion was found on the parietal occipital region;

(h) Investigating Officer has exonerated eight family members of the applicants.

It is a settled law that while granting bail, the court has to keep in mind the nature of accusation, the nature of the evidence in support thereof, the severity of the punishment which conviction will entail, the character of the accused, the circumstances which are peculiar to the accused, his role and involvement in the offence, his involvement in other cases and reasonable apprehension of the witnesses being tampered with.

Taking into account the totality of facts and keeping in mind, the ratio of the Apex Court's judgment in the case of State of Rajasthan v. Balchand @ Baliay (1977) 4 SCC 308, Gudikanti Narasimhulu And Ors., v. Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, Ram Govind Upadhyay v. Sudarshan Singh & Ors., (2002) 3 SCC 598, Prasanta Kumar Sarkar v. Ashis Chatterjee & Anr., (2010) 14 SCC 496 and Mahipal v. Rajesh Kumar & Anr., (2020) 2 SCC 118, the larger interest of the public/State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail. Hence, the present bail application is allowed.

Let applicants, Raj Bahadur (father-in-law) and Smt. Bisaniya (mother-in-law) be released on bail in the aforesaid case crime number on their furnishing a personal bond and two reliable sureties each in the like amount to the satisfaction of the court concerned subject to the following conditions:

(i) The applicants shall not directly or indirectly make any inducement, threat, or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the court or to any police officer or tamper with the evidence.

(ii) The applicants shall not pressurize/intimidate the prosecution witnesses.

(iii) The applicants shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 of Cr.P.C.

(iv) The applicants shall file an undertaking to the effect that they shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in the trial court.

(v) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel.

(vi) The applicants 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. If in the opinion of the trial court that absence of the applicants is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed in accordance with law.

The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously in accordance with law after the release of the applicants, if there is no other legal impediment.

It is made clear that the observations made in this order are limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the applicant alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 11.4.2022

T. Sinha