Smt. Usha vs State Of U.P. And Another
2022 Latest Caselaw 16462 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Court No. - 65
 

 
Case :- CRIMINAL APPEAL No. - 3449 of 2022
 

 
Appellant :- Smt. Usha
 
Respondent :- State of U.P. and Another
 
Counsel for Appellant :- Bhuvnesh Kumar Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Sanjay Kumar Pachori,J.

Heard Mr. Bhuvnesh Kumar Singh, learned counsel for the appellant, Shri Virendra Kumar Maurya, learned A.G.A. for the State and perused the material on record.

Despite service of notice upon respondent no.2, none has appeared on his behalf.

The present criminal appeal under Section 14-A(2) Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been filed by the appellant Smt. Usha to set aside the impugned order dated 24.12.2021, whereby the Special Judge (SC/ST Act), Bijnor has rejected the Bail Application No. 3202 of 2021 of the appellant moved by him in Case Crime No.131 of 2021 (SST No. 777 of 2021), under Sections 498-A, 304-B and 506 I.P.C. and 3/4 D.P. Act and 3(2)5 of SC/ST Act, Police Station Afzalgarh, District Bijnor.

The brief facts of the case are that the first information report dated 12.5.2021 was lodged by the brother of the deceased against the appellant and three other named accused persons including the husband of the deceased stating that marriage of his sister was solemnized with co-accused Pradip son of the present appellant, one year prior to the marriage. After marriage, the appellant and other co-accused demanded one lac rupees and one gold chain from him. On account of which, they made cruelty with his sister as well as they threatened her of dire consequences. Sister of the first informant informed him about the mar-peet committed by her mother-in-law (present appellant) on 12.5.2021 at about 7:00 A.M. and the appellant informed the first informant that his sister is not well. Upon coming to know, the first informant reached at the Clinic of Dr. Kamboj, Kadrabad, where he found his sister dead.

Before lodging of the first informant report, on 12.5.2021 at 13:14 P.M inquest proceedings were conducted on the basis of information of ward-boy of CHC, Afzalgarh, Bijnor. Post-mortem of the deceased was conducted at 6:20 P.M on the same day. As per inquest report as well as post-mortem report, no internal injury was found on the person of the deceased. Cause of death could not ascertain and viscera was preserved. After recording the statement of the prosecution witnesses, charge-sheet has been submitted against the appellant and other three named accused-persons and the appellant was arrested on 13.5.2021.

Learned counsel for the appellant submits that the appellant is innocent and has been falsely implicated in the present due to ulterior motive. The appellant is mother-in-law. It is further submitted that marriage of the deceased was solemnized with son of the appellant prior to the one year of the incident. It is further submitted that as per inquest report and post-mortem report, no external injury was found on the person of the deceased and viscera was preserved and report of viscera was not received while filling of charge-sheet. It is further submitted that only general allegation of demand of dowry has been assigned to the present appellant. No specific role or involvement has been attributed to the present appellant.

It is further submitted that the present appellant and her husband are living separately in village Murlivala while the deceased was residing with her husband in village Kadrabad, therefore, no offence can be made against the appellant. It is further submitted that the first informant, mother and sister of the deceased were examined in the trial court as P.W.-1 (Kiran), P.W.-2 (Jitendra) and P.W.-3 (Munni Devi), wherein P.W-2 and P.W-3 declared hostile and have not supported the prosecution case in their chief-examination. It is next submitted that P.W.-1 Jitendra brother of the deceased has not supported the prosecution case in his cross-examination and all the witnesses stated that the deceased and son of the appellant-Pradip had love affairs and they married each other. It is next submitted that the appellant is languishing in jail since 13.5.2021 and has no criminal history.

It is further submitted that there is no possibility of the appellant of fleeing away after being released on bail or tampering with the witnesses. In case the appellant is enlarged on bail, he shall not misuse the liberty of bail.

Per contra, learned A.G.A. has supported the order passed by the Special Judge (SC/ST Act), Saharanpur and vehemently opposed the prayer for grant of bail to the applicant. 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 appellant is mother-in-law of the deceased;

(b) Marriage of co-accused Pradip Kumar S/o present appellant was solemnized with deceased prior to the one year of the incident;

(c) Only general allegation of demand of dowry and cruelty has been levelled against the appellant;

(d) No specific role or involvement has been attributed to the appellant;

(e) No external injury was found on the person of the deceased;

(f) Family member of the deceased, i.e., brother, mother and sister examined before the trial court as P.W.-1, P.W.-2 and P.W.-3, however, they have not supported the prosecution case.

(g) The appellant is languishing in jail since 13.5.2021.

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 criminal appeal is allowed and impugned order dated 28.7.2022 is set aside.

Let appellant/applicant Smt. Usha be released on bail in the aforesaid case crime number on her 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 applicant 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 him (her) from disclosing such facts to the court or to any police officer or tamper with the evidence.

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

(iii) 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 of Cr.P.C.

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

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

(vi) The applicant 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/endeavour 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 :- 10.11.2022

CS/-