Arun Kumar vs State Of U.P.
2022 Latest Caselaw 20038 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

?Court No. - 13
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6704 of 2021
 

 
Applicant :- Arun Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Anil Mishra,Sanat Singh,Sudhir Kumar
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Shri Suhail Kasib Advocate alongwith Shri Sudhir Kumar, learned counsel for the applicant, Shri Akhilesh Kumar Vyas, learned AGA for the state and perused the record.

The applicant Arun Kumar has moved the present bail application seeking bail in case crime no. 106 of 2020 under sections 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act, Police Station Auras, District Unnao.

An FIR was lodged by the complainant, who is mother of the deceased alleging therein that she solemnized the marriage of her daughter with the applicant two years prior to the alleged incident. After sometime of the marriage the applicant and his other family members named in the FIR used to make additional demand of dowry and cause cruelty to her daughter. On 12.8..2020 at 2.00 P.M. Devar of her daughter informed on telephone to the complainant that her daughter died. On this information complainant alongwih her family members reached in laws' house of her daughter where somebody told that his daughter died of consuming poison.

Learned counsel for the applicant submits that the applicant is innocent and has falsely been implicated in the present case. The applicant is husband of the deceased and the marriage of the applicant was solemnized with deceased on 12-08-2020 and the relations between the applicant and deceased were cordial except some minor dispute which always happens between the husband and wife. Out of their wedlock, a male baby was born. On the date of alleged incident i.e. 12.8.2020, the deceased was living at her mayaka and on the same day at about 8.00 A.M. she came to the applicant's house (her sasural) with the applicant but she was insisting to go back to her parental house and on denial made by the applicant she was living under stress and mental pressure. This fact has been narrated in paragraph no.6 of the affidavit filed in support of this bail application. When the applicant refused her proposal to go to her parental house again on the same day, she consumed aluminium phosphide poison and committed suicide herself on the same day i.e. 12-08-2020.

Learned counsel for the applicant further submits that the applicant is a vegetable seller and is having some agriculture field. He used to keep aluminium phosphide poison in the house for the purpose of killing insecticides in the crops. The deceased consumed the alleged poison and committed suicide herself.

Learned counsel for the applicant submits that in the FIR it is not mentioned as to which article was demanded as dowry by the accused persons name in the FIR and as per the version of FIR general allegation regarding additional demand of dowry and causing cruelty to the deceased was made against the applicant and his other family members named in the FIR. No specific allegation for the same was made against the applicant and also no specific allegation was made against the applicant that he administered the alleged poison to the deceased and it is also not the case of the prosecution that the applicant has administered the poison to the deceased. Prior to the alleged incident no any complaint or FIR was ever lodged by the deceased or her family members against the applicant or any other family members named in the FIR regarding additional demand of dowry and causing cruelty to the deceased by the accused persons named in the FIR.

Learned counsel for the applicant further submits that as per the post mortem report of the deceased the cause of death could not be ascertained, hence viscera was preserved. As per the viscera report aluminium phosphide poison was found. There were two injuries shown on the corpse of the deceased at the time of post mortem whereas at the time of inquest there were two minor injuries shown on the corpse of the deceased. It was also argued by the learned counsel for the applicant that the said injuries may be caused to the deceased while taking the corpse of deceased to the hospital in the vehicle.

Learned counsel for the applicant submits that on the similar allegation coaccused who is mother of the applicant namely Smt. Seema Devi and brother of the applicant namely Anil Kumar have already been granted bail by the coordinate bench of this Court vide orders dated 26-03-2021 and 26.3.2021 passed in Bail Nos. 3918 of 2021 and 3730 of 2021 and the case of the applicant is not on the worse footing than that of the said co-accused, against whom similar allegation was levelled by the prosecution, have already been granted bail by this Court. Thus the bail application of the present applicant may also be considered by this Court sympathetically and he should be released on bail by this Court.

Learned counsel for the applicant further submits that the applicant is in jail since 14.08.2020 and has by now done a substantial period of incarceration. In support of her argument, she 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 A.G.A. while opposing the prayer for bail of the applicant submitted that the death of the deceased had occurred within seven years of her marriage and she was being subjected to cruelty in lieu of demand of dowry, therefore, the applicant is not entitled to be released on bail.

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 as per the version of FIR general allegation regarding additional demand of dowry (no article mentioned) and causing cruelty to the deceased has been levelled against the applicant and the other named persons in the FIR and no specific allegation for the same has been levelled against the applicant; it is also not the case of the prosecution that the applicant has administered the alleged poison to the deceased nor any prior compliant or FIR regarding demand of dowry or cruelty to the deceased was lodged by the deceased or her family members to any of the authorities against the accused persons named in the FIR; as per the post mortem report the cause of death of the deceased could not be ascertained, hence viscera was preserved and as per the viscera report aluminium phosphide poison was found; on the similar allegations, the aforesaid co-accused have already been granted bail by co-ordinate benches of this Court, therefore, the case of the applicant also does not appear to be on the worse footing than that of the said coaccused, thus, the bail application of the applicant is being considered by this Court sympathetically; and further 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, Arun Kumar, involved in Case Crime No. 106 of 2020 under sections 498-A, 304-B IPC and section 3/4 Dowry Prohibition Act, Police Station Auras, District Unnao 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 :- 6.12.2022

GSY