Allahabad High Court
Baby Devi And Another vs State Of U.P. on 14 December, 2022
Bench: Manish Mathur
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 71
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 31300 of 2020
Applicant :- Baby Devi And Another
Opposite Party :- State of U.P.
Counsel for Applicant :- Vinay Kumar Mishra,Shashi Kumar Mishra,Sunil Vashisth
Counsel for Opposite Party :- G.A.
Hon'ble Manish Mathur,J.
1. Heard learned counsel for applicants, learned Additional Government Advocate appearing on behalf of State and perused the record.
2. This first bail application has been filed with regard to Case Crime No. 136 of 2019 under Sections 302, 201, 506 IPC, P.S. Oncha, District Mainpuri.
3. As per contents of FIR, the incident is said to have taken place on 26th August, 2019 at about 7.00 P.M. when the main accused Chhotu who is son of applicants allegedly committed rape upon the minor sister of first informant. It is stated that upon search being conducted, the victim was found with bloodied private parts. It is further alleged that the applicants being parents of prime accused did not permit hospitalization of the victim due to which she suffered excessive bleeding and resultantly passed away on 27th August 2019 at about 11.00 A.M. It is further alleged that applicants forcibly took away the body and tried to destroy the evidence by burying the body near pond.
4. Learned counsel for applicants submit that the applicants have been falsely implicated in the charges levelled against them only on account of the fact that they are parents of main accused Chhotu. It is submitted that neither in the F.I.R. nor in the statement of first informant under Section 161 Cr.P.C. has any allegation been levelled with regard to rape having been committed upon the deceased. It is submitted that there is material contradiction in the statement under Section 161 Cr.P.C. and the contents of F.I.R. Attention has also been drawn to independent witnesses to submit that at best, though not admitting, only ingredients of section 201 IPC can be made out against applicants which even otherwise is bailable provision with maximum sentence of up to 7 years
5. Learned A.G.A. appearing on behalf of State has opposed bail application with submission that statement of first informant under Section 161 Cr.P.C. clearly corroborates the post mortem report indicating head and other injuries on the body of deceased which were allegedly made by the applicants and left parietal and occipital bone have been fractured.
6. Considering submissions advanced by learned counsel for parties and upon perusal of material on record, prima facie subject to evidence led in trial, it appears that primary gist of allegation have been levelled against son of applicants i.e. Chhotu with role being assigned to applicants of preventing hospitalization of deceased and subsequent efforts to destroy the evidence. It appears to be certain contradiction in the statement of informant under Section 161 Cr.P.C. with the allegations levelled in the F.I.R. although subsequent statement appears to be corroborated by post mortem report indicating death having occasioned due to anti mortem injuries. However it also appears that the statement under Section 161 Cr.P.C. of the first informant pertaining to injury having been caused by the applicants are not corroborated by the independent witnesses who are also named as eye witnesses by the first informant himself. The applicants are under incarceration since 28th August, 2019 and it is submitted that as yet only statement of P.W.1 has been recorded out of total 16 prosecution witnesses.
7. Hon'ble the Supreme Court in Sanjay Chandra v. Central Bureau of Investigation, reported in (2012) 1 SCC 40 has specifically held that bail is to be a norm and an under-trial is not required to be in jail for ever pending trial. Relevant paragraphs of the judgment are as under :-
"21. In bail applications, generally, it has been laid down from the earliest times that the object of bail is to secure the appearance of the accused person at his trial by reasonable amount of bail. The object of bail is neither punitive nor preventative. Deprivation of liberty must be considered a punishment, unless it is required to ensure that an accused person will stand his trial when called upon. The courts owe more than verbal respect to the principle that punishment begins after conviction, and that every man is deemed to be innocent until duly tried and duly found guilty."
"27. This Court, time and again, has stated that bail is the rule and committal to jail an exception. It has also observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution."
8. Looking to the nature of allegations levelled against the applicant and submission made in the bail application, without expressing any opinion on the merits of case and considering the nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, particularly since no reasonable apprehension of tampering with the witnesses has been alleged, prima facie, this Court finds, the applicant is entitled to be released on bail in this case.
9. Accordingly bail application is allowed.
10. Let applicants Baby Devi and Sarvesh involved in the aforesaid case crime be released on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) 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 court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under Section 229-A of the Indian Penal Code.
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail 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.
(iv) 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 Cr.P.C. If in the opinion of the trial court, 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 against them in accordance with law.
Order Date :- 14.12.2022
Prabhat
