Jay Prakash vs State Of U.P. And Another
2023 Latest Caselaw 21742 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


Neutral Citation No. - 2023:AHC:163999
 
Reserved on: 31.07.2023
 
Delivered on: 11.08.2023
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION NO. - 28535 OF 2023
 

 
Petitioner :- Jay Prakash
 
Respondent :- State Of U.P. and Another
 
Counsel for Petitioner :- Madhukar Maurya, Tikendra Pratap Singh
 
Counsel for Opposite Party :- G.A., Pramesh Kumar, Ram Bhawan
 

 
Hon'ble Rajeev Misra,J.

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

2. Perused the record.

3. This application for bail has been filed by applicant-Jay Prakash seeking his enlargement on bail in Case Crime No. 82 of 2023, under Sections 363, 366, 306 IPC, Police Station-Manth, District-Mathura, during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 06.05.2023, a delayed FIR dated 10.05.2023 was lodged by first informant-Vikram (Father of the deceased) and was registered as Case Crime No. 82 of 2023, under Sections 363 IPC, Police Station- Manth, District-Mathura. In the aforesaid FIR, 2 persons namely - (1) Sandeep and (2) Jay Prakash (applicant herein) have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that Kajal aged about 17 years, daughter of the first informant, had gone to the woods to collect fire woods at around 10:30 AM but did not return home even till late in the evening. Thereafter, an attempt was made to locate the whereabouts of the missing daughter and then it was gathered that named accused has enticed away the daughter of the first informant.

6. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The dead body of the deceased was recovered on 10.05.2023. Thereafter, the inquest (Panchayatnama) of the body of the deceased was conducted on 10.05.2023. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of the deceased was opined as suicidal. As per the case diary, subsequent to above, the post mortem of the body of the deceased was conducted. The Doctor, who conducted the autopsy of the body of the deceased found following anti-mortem injuries on her body:-

"1. A reddish brown abraded ligature mark of length 24cm and width 3cm was present highup in neck lying 6cm below chin in extended neck position, on right side ligature mark going obliquely upwards and backwards lying 3cm below right angle of mandible than going obliquely upwards and backwards lying 8cm below right mastoid process. On left side mark going obliquely upwards and backwards lying 5cm below and anterior to left angle of mandible and 9cm below mastoid process.Posteriorly it was situated 5cm below occipital protuberance.Total circumference of neck 32cm.On dissection underlying tissue were dry, pale, white, glistening and parchment like with marginal ecchymosis faintly appreciable at places. On further dissection, corresponding soft tissues and laryngotracheal structures were found intact. Hyoid bone found intact

2. Hymen was torn and contused at places with margins were reddish and irregular. Vulval swabs, anterior vaginal swabs and posterior vaginal swabs were taken sealed with five seawls of SS in a sealed packet for DNA matching and profiling and seminal stains detection."

7. According to the Autopsy Surgeon, cause of death of the deceased was Asphyxia as a result of anti-mortem hanging.

8. During course of investigation, Investigating Officer examined the following witnesses under Section 161 Cr.P.C.:

(i). Balbeer.

(ii). Smt. Monika,

(iii). Radha.

9. Apart from the statements of aforesaid witnesses, the Investigating Officer also examined the Autopsy Surgeon. His statement is on record at page 44/45 of the paper book. The relevant part of the statement of the Autopsy Surgeon is reproduced hereinunder:-

"OPINION CAUSE OF DEATH IN OUR OPINION THE CAUSE OF DEATH IN THIS CASE IN ANTIMORTEM HANGING, PROBABLE TIEM BETWEEN INJURY AND DEATH RECENT, BETWEEN DEATH AND POSTMORTEM EXAMINATION WITHIN 48 HOURS, ANY OTHER NOTE HYMEN WAS TORN AND CONTUSED AT PLACES WITH MARGINS WERE REDISH AND IRREGULAR VULVAL SWABS, ANTERIOR VAGINAL SWABS AND POSTERIOR VAGINAL SWABS WERE TAKEN SEALED WITH FIVE SEALS OF SS IN A SEALED PACKET FOR DNA MATCHING AND PROFILING AND SEMINAL STAINS DETECTION. A SEALED ENVELOPE FOR DNA MATCHING AND PROFILING AND SEMINAL STAIN DETECTION BEARING 05 SEALS CONTAINING FORWARDING LETTER TO ASSISTANT DIRECTOR RFSL BHONDSI GUGAON,, A SAMPLE OF SEAL, LIGRATURE MATERIAL IN A SEALED PACKET BEARING FIVE SEALS OF SS AND HANDED OVER TO POLICE SWABS IN A SEALED PACKET VULVAL SWABS ANTERIOR VAGINAL SWABS AND POSTERIOR VAGINAL SWABS WERE TAKEN SEALED WITH FIVE SEALS OF SS IN A SEALED PACKET FOR DNA MATCHING AND PROFILING AND SEMINAL STAINS DETECTION."

10. Ultimately, on the basis of above and other material collected by Investigating Officer, he came to the conclusion that complicy of aplicant- Jay Prakash is established in the crime in question. He, accordingly, submitted the charge sheet dated 09.06.2023, whereby applicant Jay Prakash had been charge sheeted under Sections 363, 366, 306 IPC, Police Station-Manth, District-Mathura.

11. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused but he is innocent. Applicant has been falsely implicated in the crime in question. The prosecutrix was in love with the applicant and she herself came to the applicant. As such, no offence under Section 363/366 IPC is made out against applicant. As such, no offence as complained of can be said to have been committed by applicant. According to the learned counsel for applicant, an offence under Section 306 IPC has to be considered on a conjoint reading of Sections 107 and 306 IPC. As per the material on record, it cannot be said that applicant has abetted, instigated or conspired in the commission of crime in question. Moreover, no such circumstance has emerged on the record of aforementioned case crime number, on the basis of which, it can be inferred that the deceased committed suicide on account of an immediate act of applicant. He, therefore, contends that prima-facie no offence under Section 306 IPC is made out against applicant. Reference has been made to the following judgments in support of aforesaid submissions:-

(i). Sarvesh Vs. State of U.P. 2018 ADJ Online 0163,

(ii). Kanchan Sharma Vs. State of U.P. and Another 2021 SCC OnLine SC 737,

(iii). Mirza Iqbal alias Golu and Another Vs. State of U.P. and Another 2021 SCC OnLine SC 1251,

(iv) Mariano Anto Bruno and Another Vs. Inspector of Police 2022 SCC OnLine SC 1387,

(v) Kashibai and Others Vs. State of Karnataka, 2023 SCC OnLine SC 575,

12. Even otherwise, applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. Applicant is in jail since 12.05.2023. As such, he has undergone more than 2 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted against applicant. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. There is no material on record on the basis of which, it can be inferred that custodial arrest of applicant is absolutely necessary during the pendency of trial. He, therefore, submits 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.

13. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The prosecutrix was a young girl and a minor. Nothing has been brought on record to establish that the prosecutrix was above 18 years of age on the date of occurrence and thus major. Attention of the Court was then invited to the statement of the Autopsy Surgeon which has already been referred to above. On the basis of aforesaid, the learned A.G.A. contends that the modesty of the prosecutrix was dislodged even though no marriage was solemnized by the applicant with the prosecutrix. According to the learned A.G.A., the witnesses examined under Section 161 Cr.P.C. have substantially supported the FIR. Up to this stage, no such circumstance has emerged leading to the conclusion that the applicant is innocent. It is thus contended that the innocence of the applicant, if any, can be decided only in the trial. On account of the nature and gravity of offence, no sympathy be shown by this Court in favour of applicant. On the above conspectus, the learned A.G.A. contends that the present application for bail is liable to be rejected.

14. Having heard the learned counsel for applicant, the learned AGA for State, upon perusal of record, evidence, complicity of applicant, accusations made, the nature and gravity of offence and coupled with the fact that the prosecutrix was minor as she was below 18 years of age on the date of occurrence, nothing has been brought on record to show that the prosecutrix was major, as per the statement of Balveer, landlord of the premises in which the applicant was residing along with the prosecutrix, it is apparent that a false disclosure was made by the applicant to the landlord that the prosecutrix is his wife, there is no evidence on record to show that the prosecutrix had solemnized marriage with the applicant, in spite of above, the modesty of the prosecutrix was dislodged, as is evidenced from the statement of the Autopsy Surgeon, this Court does not find any good ground to enlarge the applicant on bail.

15. As a result, present application for bail fails and is liable to be rejected.

16. It is accordingly rejected.

Order Date :- 11.08.2023

Vinay