Chand Miyan vs State Of U.P.
2022 Latest Caselaw 19469 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 459 of 2020
 

 
Applicant :- Chand Miyan
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Syed Fazal Abbas Rizvi,Aakash Srivastava,Alok Kumar Srivastava,Atul Verma,Mohammad Arif Khan,Vinod Kumar Yadav
 
Counsel for Opposite Party :- G.A.,M L Syal
 

 
Hon'ble Shamim Ahmed,J.

Supplementary affidavit filed by learned counsel for the applicant today is taken on record.

Case is called out. No one is present for the complainant.

Heard Shri Atul Verma, learned counsel for the applicant, Smt. Jan Laxmi Tiwari Senani, the learned A.G.A. for the State and perused the record.

The applicant, Chand Miyan, has moved the present bail application seeking bail in Case Crime No. 451 of 2019, under Sections 498-A, 307,302,316,323,504,506,325 I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Shahabad, District Hardoi.

Learned counsel for the applicant submits that the applicant has falsely been implicated in the present case. Applicant is son-in-law of the complainant- Smt.Shahana. The marriage of the applicant was solemnized with the daughter of the complainant about 5 years prior to the alleged incident by giving sufficient dowry. As per the allegation of the FIR, the applicant and other named accused persons made additional demand of dowry in the form of Rs. 17 lacs for purchase of a car. There was no occasion for the applicant or any other named accused persons for demand of additional dowry after five years of the marriage of the applicant with the daughter of the complainant and there was no any prior complaint or FIR lodged by the complainant or her daughter regarding additional demand of dowry or harassment and causing cruelty to her daughter by the accused persons named in the FIR.

Learned counsel for the applicant further submits that the applicant and daughter of the complainant were living their very happily marital life. Out of their wedlock one female child was born. There was some minor dispute between the applicant and daughter of the complainant which always happens between the husband and wife. The matter was not so serious but since the complainant was not happy with the marriage of her daughter with the applicant, she used to make false allegation against the applicant. The complainant and her other family members came to the house of the applicant where some hot talk took place between the parties regarding demand of dowry and when they went back to their residence, on the way they met with an accident, but the complainant stated that the applicant came with his vehicle and dashed her all the family members including the husband of the complainant and wife of the applicant, resulting they received injuries.

Learned counsel for the applicant further submits that real facts of the case are that when the complainant along with her family members including her husband namely Mubeen Khan were returning after attending the function in village they met with an accident and due to the accident serious injuries were caused to the husband of the complainant and other family members of the complainant. On the same day i.e. 15.08.2019 injured persons namely Smt. Shahana Bano, Smt. Farheen, Km. Insha and Mubeen were medically examined by the doctor at Pt. Ram Dayal Trivedi District Hospital, Hardoi. On 19.8.2019 Smt. Farheen daughter of complainant and wife of the applicant were referred to District Women Hospital, Hardoi.

Learned counsel for the applicant argued that the alleged incident is an accident and to give colour in the case it has been shown that applicant has hit the car intentionally as alleged by the prosecution. Thus, the prosecution story appears to be false and fabricated.

Learned counsel for the applicant further submits that the statement of the complainant was recorded under section 161 Cr.P.C. on 15.8.2019 by the investigating officer, in which she has almost repeated the same version of the first information report, whereas, the complainant in her statement recorded before court below on 15.3.2021 has stated that the applicant hit the car and also attacked on her husband by a knife which is used for cutting sugarcane and co-accused Raju also assaulted her husband with the Butt of a country made pistol, due to which her husband received injuries on his head and eyes. Thus, there is a material contradiction therein, which also falsifies the entire prosecution story.

Learned counsel for the applicant further submits that the husband of the complainant namely Mubeen Khan met with an accident and received serious injuries. He was referred to KGMU, Lucknow on 18-08.2019 and during the course of treatment he died. The post mortem examination of the deceased Mubeen Khan was conducted on 19.08.2019 and his cause of death was shown as septicemia due to ante mortem injuries. The deceased died after four days of the alleged incident. There was no intention of the applicant to cause injuries to the deceased or to kill him. It is not a case of the prosecution that the applicant intentionally hit the deceased by his vehicle whereas a general allegation is levelled against the applicant that he hit all the persons who were accompanying the complainant and they received the injuries.

Learned counsel for the applicant further submits that the injuries as shown in the post mortem report of the deceased and the version of the FIR are also not co-related to each other. It also creates doubt on prosecution story. On the pressure created by her mother (complainant) the wife of the applicant took somersault in her statement recorded under section 161 Cr.P.C. and made allegation against the applicant because of some matrimonial disputes which is already going on between the applicant and his wife.

Learned counsel for the applicant further submits that the statements of the independent witnesses namely, Sri Jaleel, Sri Ali Mohammad and eye witnesses namely Sri Faiyaz Khan were recorded by the investigating officer under section 161 Cr.P.C. on 03-09-2019, who have not supported the prosecution case as alleged by the complainant. Thus, it appears that the prosecution story is improbable as the incident took place in between densely populated village even though no one has supported the prosecution case.

Learned counsel for the applicant further submits that as per the version of FIR general allegation was levelled against the applicant and his brothers namely Raja and Raju regarding additional demand of dowry and causing cruelty to the deceased but the investigating officer after investigation of the case dropped the names of Raja and Raju from the chargesheet and chargesheeted only the applicant, which also falsifies the prosecution case.

Learned counsel for the applicant further submits that the applicant is in jail since 16.8.2019 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

"2. This is a case in which the appellant has been convicted u/s 304-B of the India Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High Court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Faridabad."

Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463, and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under:-

"2. The appellants have been convicted under Section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life. Against the said conviction and sentence their appeal to the High Court is pending. Before the High Court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one year. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. There is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. The appeal is disposed of accordingly."

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 and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned AGA opposed the prayer for bail and submitted that the accident was caused by the applicant deliberately with intention to cause injuries to the family members of the complainant resulting into the death of husband of the complainant, thus, his bail application may be rejected.

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, considering the fact that the independent witnesses have not supported the prosecution case and on similar allegation the investigating officer has dropped the names of coaccused Raju and Raja who are real brothers of applicant from chargesheet, and only the charge sheet has been filed against the applicant; there appears force in the submission of the learned counsel for the applicant that the alleged incident is an accident and there was no intention of the applicant to hit the car; and considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal Vs. State of Haryana (supra), Takht Singh Vs. State of Madhya Pradesh(supra) and Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the applicant may be enlarged on bail.

The prayer for bail is granted. The application is allowed.

Let the applicant, Chand Miyan, involved in Case Crime No. 451 of 2019, under Sections 498-A, 307,302,316,323,504,506,325 IPC and section 3/4 Dowry Prohibition Act, Police Station Shahabad, District Hardoi, be enlarged 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 fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

(3) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

(4) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

(5) In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.

(6) The applicant 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 Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

(7) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

(8) 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.

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 merit of the case.

Order Date :- 2.12.2022

GSY