Rohit vs State Of U.P.
2023 Latest Caselaw 20137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:154284
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30308 of 2023
 

 
Applicant :- Rohit
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shiv Narayan Pandey,Divyansh Sharma
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. A.K. Ojha holding brief of Mr. S.N. Pandey and Mr. Divyansh Sharma, the learned counsel for applicant and the learned A.G.A. for State.

This application for bail has been filed by applicant Rohit seeking his enlargement on bail in Case Crime No.18 of 2021, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Thariyaon, district Fatehpur, during the pendency of trial.

Perused the record.

It transpires from the record that the marriage of applicant Rohit was solemnized with Gudia Devi (daughter of first informant) on 19.04.2021 in accordance with Hindu rites and custom. However, just after expiry of a period of two years and eight months from the date of marriage of the applicant, an unfortunate incident occurred on 03.02.2021 in which the wife of applicant, namely, Gudia Devi died as she committed suicide by hanging herself. The information regarding aforesaid incident was not given by applicant or any of his family members at the concerned police station but by first informant, namely, Deshraj i.e. father of the deceased.

Subsequently, the father of the deceased lodged an FIR dated 03.02.2021, which was registered as Case Crime No.0018 of 2021, under Sections 304-B, 498-A IPC and Section 3/4 Dowry Prohibition Act, police station Thariyaon, district Fatehpur. In the aforesaid FIR, two persons namely, Rohit-applicant herein (husband) and Smt. Jamuna (mother-in-law) have been nominated as named accused.

The gravamen of the allegations made in the first information report is to the effect that marriage of the applicant was solemnized with Gudia Devi, daughter of the first informant, on 19.05.2018 in accordance with Hindu rites and customs. However, additional demand of dowry i.e. Car and a gold chain was made by the in-laws' of the daughter of first informant. As demand of additional dowry was not fulfilled, physical and mental cruelty was committed upon the daughter of first informant.

Learned counsel for applicant contends that charge-sheet has already been submitted against both the named accused on 14.02.2021. Thereafter, the trial has commenced and up to this stage, three prosecution witnesses of fact, namely, PW-1 Deshraj (first informant/father-in-law of the deceased), PW-3 Suresh Kumar (brother of the deceased) have been examined. There statements have also been brought on record as Annexures-4 and 5 to the affidavit filed in support of this bail application. He further contends that PW-2 Chandrawti, mother of the deceased, has also been examined. However, all the witnesses of fact named above have not supported the FIR. He then contends that co-accused Smt. Jamuna @ Jamuna Devi has already been enlarged on bail by this Court vide order dated 19.01.2023 passed in Criminal Misc. Bail Application No.4820 of 2022. For ready reference, the order dated 19.01.2023 is reproduced herein-under :-

"Heard learned counsel for the applicant and learned A.G.A for the State.

This is second bail application of the applicant.

The first bail application of the applicant was rejected on 19.08.2021 by the coordinate Bench of this Court which is not available now.

Counsel for the applicant submits that before the trial court, P.W-1, P.W-2 and P.W-3 have been examined. The statements of witnesses of fact has been almost completed. Now there is no chance of tampering with the witnesses. The applicant is a senior citizen. She is in jail since 03.02.2021 and has no criminal history to her credit.

On the other hand learned A.G.A has opposed the prayer for bail.

Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties noted above, finding force in the submissions made by the learned counsel for the applicant, larger mandate of the Article 21 of the Constitution of India, considering the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another reported in (2018) 3 SCC 22 and recent judgment dated 11.07.2022 of the Apex Court in the case of Satendra Kumar Antil vs. C.B.I., passed in S.L.P (Crl.) No. 5191 of 2021 and considering 5-6 times overcrowding in jails over and above their capacity by the under trials and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant, Smt Jamuna @ Jamuna Devi, involved in Case Crime No. 18 of 2021, under Sections- 498-A, 304-B IPC and Section 3/4 of D.P. Act, Police Station- Thariaon, District- Fatehpur, be released on bail on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.

(i) The applicant shall not tamper with the evidence or threaten the witnesses.

(ii) 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 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.

(iii) The applicant shall remain present before the Trial Court on each date fixed, either personally or as directed by the Court. In case of her absence, without sufficient cause, the Trial Court may proceed against her under Section 229-A of the Indian Penal Code.

(iv) In case the applicant misuses the liberty of bail during trial and in order to secure her 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 her in accordance with law under Section 174-A of the Indian Penal Code.

(v) 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 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 against her in accordance with law.

In case, of breach of any of the above conditions, it shall be a ground for cancellation of bail.

Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

Trial court is directed to conclude the trial of the applicant as expeditiously as possible preferably within a period of six months from the date of production of certified copy of this order."

The case of present applicant and co-accused Smt. Jamuna @ Jamuna Devi is similar and identical. No such circumstance exists on the basis of which the case of present applicant could be so distinguished from aforesaid co-accused so as to deny him bail. As such applicant is liable to be enlarged on bail on the ground of parity also. According to the learned counsel for the applicant, the deceased was a short tampered lady and she had taken the extreme step of terminating her life by committing suicide. The bona fide of the applicant is explicit from the fact that except for the ligature mark, no other ante-mortem injury was found on the body of the deceased by the autopsy surgeon, who conducted the autopsy of body of the deceased. For ready reference, the ante-mortem injuries found on the body of the deceased are reproduced herein-under :-

"Ante-mortem Injuries :-

1. Ligature mark size 29 cm x 1.5 cm oblique only placed above the thyroid cartilage with the gap of 3 cm behind the neck, around the ligature margin below present from Rt. Ear 4 cm from chin - 5 cm in front Lt. ear-7 cm.

2. On dissection ligature injury are whitish leather.

3. Contuse swelling 4 cm x 5 cm present on the Rt. side of face invoting Rt. orbital region.

4. Contuse swelling 5 cm x 4 cm present on he Rt. temporal region."

With reference to the FIR, the learned counsel for applicant submits that the allegations made in the FIR with regard to demand of additional dowry and commission of physical cruelty upon the deceased on account of non-fulfillment of additional demand of dowry are vague and bald, inasmuch as, the same are devoid of material particulars. As such the same are liable to be ignored by this Court in view of the law laid down by the Apex Court in Kahkashan Kausar @ Sonam & others Vs. State of Bihar (2022) 6 SCC 599. Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in jail since 07.02.2021. As such he has undergone more than two years and approximately four months of incarceration. In view of the statements of the prosecution witnesses of fact examined up to this stage i.e. PW-1, PW-2 and PW-3, no useful purpose shall be served in prolonging the custodial arrest of the applicant. He, therefore, contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. According to the learned A.G.A. the prosecution evidence has not yet concluded, therefore, inference regarding innocence of the applicant cannot be inferred as per the statement of three prosecution witnesses examined up to this stage. He thus urged that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that father, mother and brother of the deceased who have deposed before the court below as PW-1, PW-2 and PW-3 have not supported the FIR, considering the clean antecedents of the applicant, the period of incarceration undergone this Court finds that no useful purpose shall be served in prolonging the custodial arrest of the applicant during the pendency of trial, the judgement of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5), but without making any comments on the merits of the case, the applicant has made out a case for bail.

Accordingly, the bail application is allowed.

Let the applicant Rohit, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 applicant shall file an undertaking to the effect that he shall not seek any adjournment on the date 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 applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under section 82 Cr.P.C., may be issued and if 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 I.P.C.

(iv) The applicant shall remain present, in person, before the trial court on dates fixed for (1) opening of the case, (2) framing of charge and (3) recording of statement under section 313 Cr.P.C. If in the opinion of the trial court 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 against him in accordance with law.

(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 2.8.2023.

Rks.