Shiv Kumar vs State Of U.P.
2022 Latest Caselaw 4385 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 72
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40175 of 2021
 

 
Applicant :- Shiv Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashutosh Pratap Singh,Lokendra Pratap Singh,Vipin Kumar
 
Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav
 
AND
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40190 of 2021
 

 
Applicant :- Smt. Reena
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ashutosh Pratap Singh,Lokendra Pratap Singh,Vipin Kumar
 
Counsel for Opposite Party :- G.A.,Sanjay Kumar Yadav
 

 
Hon'ble Sanjay Kumar Pachori,J.

Learned counsel for the applicant has filed rejoinder affidavit, learned counsel for the first informant has filed counter affidavit both are taken on record.

Heard Sri Sarvesh Kumar Dubey, learned counsel for the applicant, Sri Sanjay Kumar Yadav, learned counsel for the first informant and learned A.G.A. for the State and perused the material on record.

Both bail applications arise by same offence, hence, decided by common order.

The present bail applications have been filed on behalf of applicants Shiv Kumar and Smt. Reena under Section 439 of the Code of Criminal Procedure, with a prayer to release them on bail in Case Crime No. 193 of 2020 for offence punishable under Sections 498-A, 304-B of the Indian Penal Code and Section 3/4 of Dowry Prohibition Act, registered at Police Station- Jasrathpur District- Etah during pendency of the trial, after rejecting the bail applications of the applicants by Sessions Judge Etah vide order dated 25.08.2021 and by In-charge Sessions Judge Etah vide order dated 11.08.2021.

Brief facts of the present case are that the first information report has been lodged on 13.10.2020 against the applicants and four other family members of the applicants including the husband of the deceased by the father of the deceased stating therein that the marriage of his daughter Meenu aged about 23 years was solemnized with co-accused Swadesh Singh on 07.07.2019 and he has spent Rs. 6 lacs on the marriage of his daughter but after marriage, the applicant and other co-accused persons were not satisfied with the dowry and they demanded Rs. 40,000/- cash, one motorcycle and a gold chain as additional dowry for which they were harassing his daughter. His daughter informed him by phone and he came to his daughter's in-laws' house and explained to the in-laws that he was a poor man, he could not fulfill their demand, but they stood firm on their demand. On 13.10.2020 at about 10:20 A.M. due to non-fulfillment of their additional demand of dowry, the applicants and other co-accused persons put kerosene on his daughter and set her on fire. His another daughter Rashmi informed about the incident to the first informant. After getting the information, he went to his daughter's in-law's house and found his daughter's burnt body lying in the courtyard of the house.

After lodging of the F.I.R. the inquest proceedings of the body of the deceased were conducted on 13.10.2020 at about 18:48 hours. Postmortem of the body of the deceased was conducted on 12:55 P.M. As per postmortem report superficial to deep burns (94%) present over lower aspect of face from lips, chin, neck, thorax, abdomen, upper limbs, bilateral lower limbs, bilateral lower back (whole) genital area, buttocks with peeling of skin at places and line of redness present except sole bilateral lower, upper face and head. Hairs of scalp clipped with hair clip, about 1-2 cm inferior end of hairs of lower hairline of neck present. Viscera preserved for chemical examination. After recording the statement of the other prosecution witnesses, charge sheet has been submitted against the applicants and four other named persons on 12.08.2021. The applicants were arrested on 08.08.2021 and 02.06.2021 respectively.

Learned counsel for the applicants submits that the applicants are innocent and have been falsely implicated in the present case due to ulterior motive. The applicant Shiv Kumar is brother-in-law (Jeth) of the deceased and Smt. Reena is sister-in-law (Jethani) of the deceased. The marriage of the co-accused Swadesh Singh was solemnized with deceased on 07.07.2019. It is further submitted that general allegation of demand of dowry and harassment have been assigned to the applicants, no specific allegation and involvement attributed to the applicants. It is further argued that one month prior to the incident, i.e., on 13.09.2020 one compromise was held between the co-accused Swadesh and father of the deceased. In the said incident victim has sustained 10 contusion injuries were found on the person of the deceased medical examination was conducted on 13.09.2020 at 02:30 P.M. It is further submitted that the said incident has been committed by the husband of the deceased. It is further submitted that applicants have separately living from co-accused Swadesh Singh and deceased Meenu. It is further argued that as per video clip which alleged to have been collected during the course of investigation. It is further argued that independent witness namely Ashok Kumar, Gajendra Kumar, Narendra Kumar who were Assistant Teacher of the school and one Ram Vati who have reached at the place of incident and they stated that the elder sister of the deceased made a false video after instigate to the injured (now deceased) for implication to the applicant and other four named co-accused persons.

It has also been submitted that co-accused Bhanwar Pal Singh, Smt. Radha Devi and Smt. Laxmi, having similar role, who have father-in-law, mother-in-law and sister-in-law of the deceased have already been enlarged on bail by the Coordinate Benches of this Court vide order dated 20.07.2021, 25.08.2021, 25.02.2022 in Criminal Misc. Bail Application Nos. 21749 of 2021, 22008 of 2021 and 39834 of 2021 respectively. 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.

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. as well as 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 applicant and submits that one month prior to the incident they committed marpit with the deceased and in a video clip deceased has assigned the role to all the persons and further submits that the allegations involved are very serious in nature and the delay in lodging the F.I.R. cannot be said to be fatal to the case at this juncture while considering the application of bail. But he could not point out any material to the contrary. He further submits that in case the applicant is released on bail, he 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) The applicants Shiv Kumar is brother-in-law (Jeth) of the deceased and Smt. Reena is sister-in-law (Jethani) of the deceased;

(b) General allegation of demand of dowry and harassment have been assigned to the applicants;

(c) No specific allegation and involvement attributed to the applicants;

(d) General role of causing burn injuries have been assigned to the applicants and other four named persons;

(e) Husband of the deceased is in judicial custody;

(f) Co-accused Bhanwar Pal Singh (father-in-law), Smt. Radha Devi (mother-in-law) and Smt. Laxmi, (sister-in-law) having similar role, have already been enlarged on bail by the Coordinate Benches of this Court;

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, both the bail application are allowed.

Let applicants, Shiv Kumar and Smt. Reena be released on bail in the aforesaid case crime number 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 applicant 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/endeavor and try to conclude the trial expeditiously in accordance with law after the release of the applicant, 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 along-with 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 :- 27.5.2022

Ishan