Sushant Gupta vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 20356 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


?Neutral Citation No. - 2023:AHC-LKO:51348
 
Court No. - 15
 

 
Case :- CRIMINAL APPEAL No. - 1213 of 2023
 

 
Appellant :- Sushant Gupta
 
Respondent :- State Of U.P. Thru. Prin. Secy. Home Lko. And Another
 
Counsel for Appellant :- Anil Kumar Tripathi
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard learned counsel for the appellant, learned A.G.A. for the State and perused the entire record.

This Criminal Appeal under Section 14-A (2) of Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act has been preferred against the impugned order dated 04.04.2023 passed by learned Special Judge, S.C./S.T. Act, Lucknow in Bail Application No.2863 of 2023, Case Crime No.23/2023, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act and Section 3(2)5 of S.C./S.T. Act, Police Station Madiyaon, District Lucknow, whereby the bail application of the appellant has been rejected.

Learned A.G.A. for the State has filed counter affidavit today in the Court, in reply thereto, learned counsel for the appellant has also filed rejoinder affidavit today in the Court, the same are taken on record.

In spite of service of notice upon opposite party no.2 vide office report dated 20.05.2023, no counter affidavit has been filed nor any counsel has appeared on his behalf, as such, it appears that he is not interested to contest this case.

Since the matter pertains to bail and learned counsel for the appellant presses urgency in the matter, therefore, this Court has no other option but to proceed further in the matter.

Learned counsel for the appellant submits that the appellant has been falsely implicated in the present case due to enmity. The appellant is the husband of the deceased. The marriage of the appellant and deceased was solemnized on 05.12.2022 as per Hindu rites and rituals. The relation between the appellant and the deceased were cordial except some minor dispute which usually happens between husband and wife. On the festival of Makar Sankranti, the deceased was insisting to go her parental house but the appellant requested to go on the next day, annoyed with the direction given by the appellant, the deceased committed suicide by asphyxia herself. The inquest was conducted in front of the family members. The F.I.R. was lodged on 15.01.2023 by the father of the deceased against the appellant with the allegation that the appellant committed murder on the demand of dowry.

Learned counsel for the appellant further submits that in the F.I.R., a general allegation of demand of dowry has been levelled against the appellant, however, no article is mentioned of which the appellant made demand. The post mortem of the deceased was conducted on 16.01.2023, wherein cause of death is asphyxia due to ante mortem hanging, however, viscera was preserved for chemical analysis and till date no F.S.L. report is available. This fact has also been confirmed by learned A.G.A. for the State. In the post mortem report only one injury was reported which is being quoted hereunder:-

"Ante Mortem Injuries:- An oblique ligature mark 28.0 cm x 1.0 cm present all around the neck above thyroid cartilage are present of neck passing obliquity implant and backland along the time of mandible and it is interrupted by 5.00 cm ob back of neck ligature mark situated 5.0 cm below left ear and 4.00 cm below rt. ear Base of groove ligature mark is yellowish hard and portioned like. On opening B/c tissues underneath the ligature mark are white hard and glistering."

In support of his argument that deceased committed suicide by hanging herself, the learned counsel for the appellant placed reliance upon the extract of Modi's Medical Jurisprudence, wherein definition of hanging has been described. Learned counsel for the appellant submits that since the definition of hanging given in Modi's Jurisprudence and the postmortem report of the deceased are identical, it appears a case of committing suicide by hanging and not the murder.

Learned counsel for the appellant further submitted that prior to lodging of the instant F.I.R., there is no complaint about demand of dowry against the appellant or causing cruelty in lieu thereof.

Several other submissions in order to demonstrate the falsity of the allegations made against the appellant 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 appellant 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 he is in jail since 15.01.2023 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 appellant submitted that the death of the deceased had occurred within seven years of her marriage and appellant is the husband of the deceased, therefore, he 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 there is no specific allegation against the appellant and general role has been assigned against the applicant for demand of dowry and on account of non fulfillment thereof causing cruelty to the deceased; except only one ligature mark present all around the neck of the deceased no other injury found on the person of the deceased; cause of death is hanging due to ante mortem hanging; and considering the fact that applicant has already undergone a substantial period of incarceration; and considering the Modi's Medical Jurisprudence, wherein definition of hanging has been described; as well as 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 case of Dataram Singh vs. State of UP and another, reported in (2018) 3 SCC 22, this Court is of the view that the learned court below has failed to appreciate the material available on record. The order passed by the court below is liable to be set aside.

Accordingly, the appeal is allowed. Consequently, the impugned judgment and order dated 04.04.2023 passed by learned Special Judge, S.C./S.T. Act, Lucknow in Bail Application No.2863 of 2023, Case Crime No.23/2023, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act and Section 3(2)5 of S.C./S.T. Act, Police Station Madiyaon, District Lucknow is hereby set aside and reversed.

Let the appellant, Sushant Gupta be released on bail in the Case Crime No.23/2023, under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act and Section 3(2)5 of S.C./S.T. Act, Police Station Madiyaon, District Lucknow with the following conditions:-

(i) The appellant shall furnish a personal bond with two sureties each of like amount to the satisfaction of the court concerned.

(ii) The appellant shall appear and strictly comply following terms of bond executed under section 437 sub section 3 of Chapter- 33 of Cr.P.C.:-

(a) The appellant shall attend in accordance with the conditions of the bond executed under this Chapter.

(b) The appellant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and

(c) The appellant 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 from disclosing such facts to the Court or to any police officer or tamper with the evidence.

(iii) The appellant shall cooperate with investigation /trial.

(iv) The appellant shall file an undertaking to the effect that he 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.

(v) The appellant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, the trial court may proceed against him under Section 229-A of the Indian Penal Code.

(vi) In case, the appellant misuses the liberty of bail during trial, in order to secure his presence, proclamation under section 82 Cr.P.C. is issued and the appellant 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.

(vii) The appellant shall remain present, 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 appellant 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.

(viii) The trial court is also directed to expedite and conclude the trial of the aforesaid case within a year from today by following the provisions of Section 309 Cr.P.C., strictly without granting any unnecessary adjournments to the parties, in case there is no other legal impediment.

Order Date :- 3.8.2023

Saurabh