Dinesh Prasad vs State Of U.P.
2023 Latest Caselaw 23132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:170846
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33570 of 2023
 

 
Applicant :- Dinesh Prasad
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Mohd. Samiuzzaman Khan,Tanveer Zafar Khan
 
Counsel for Opposite Party :- G.A.,Dhirendra Kumar Verma,Renu Swarnkar
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Mohd. Samiuzzaman Khan along with Tanveer Zafar Khan, the learned counsel for applicant, the learned A.G.A. for State and Mr. Pragyaker Mani Tripathi, Advocate, holding brief of Mr. Dhirendra Kumar Verma, the learned counsel for first informant.

Perused the record.

This application for bail has been filed by applicant Dinesh Prasad seeking his enlargement on bail in Case Crime No. 281 of 2022, under Sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station- Patherwa, District Kushinagar during the pendency of trial.

Record shows that, marriage of applicant was solemnized with Manorma on 21.5.2022. However, just after expiry of period of one year and one month from the date of marriage of applicant, an unfortunate incident occurred on 11.7.2022, in which the wife of applicant made an attempt to commit suicide by hanging herself, but was unsuccessful. Thereafter she was taken to the hospital by applicant himself from where she was referred to District Hospital and thereafter to Medical College Gorakhpur. While she was under treatment she succumbed to the injuries sustained by her on 19.7.2022. Neither the statement of prosecutrix was recorded under section 161 Cr.P.C. nor her dying declaration was recorded which she was undergoing treatment. The information regarding death of deceased was given by applicant himself at the concerned Police Station. On the said information, the inquest of the body of deceased was conducted on 9.7.2022. In the opinion of witnesses of inquest (panch witnesses) the nature of death of deceased was characterized as suicidal.

Thereafter the first informant Smt. Sushila Devi, mother of the deceased lodged a belated F.I.R. dated 29.7.2021 and was registered as Case Crime No. 281 of 2022, under Sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station- Patherwa, District Kushinagar. In the aforesaid F.I.R. three persons namely, Dinesh Prasad and Bhabi of Dinesh, Mother of Dinesh have been nominated as named accused.

The gravamen of the allegations made in the F.I.R. is to the effect that named accused committed physical and mental cruelty upon the deceased for fulfillment of demand of dowry.

Subsequent to the aforesaid F.I.R. post mortem of the body of deceased was conducted on 20.7.2022. In the opinion of the autopsy surgeon, the cause of death of deceased was asphyxia due to ante mortem injuries. The autopsy surgeon who conducted autopsy of the body of deceased found following ante-mortem injuries on the body of deceased:

(i) Abrasion on back of chest 3 cm x 2 cm size midline.

(ii) Ligature mark on neck 2.0 x Longth 2 cm wide, 5 cm below right ear, 3 cm below seen 7 cm below left ear, ligatrue on cutting parchment like present on opinion Trochea congested Hyoid Bone intact.

During course of investigation, Investigating Officer examined first informant and other witnesses under section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant is established in the crime in question. He, accordingly submitted the charge sheet dated 15.10.2022, whereby all the named accused have been charge sheeted under sections 498A, 304B IPC and Section 3/4 D.P. Act.

Learned counsel for applicant contends that though the applicant is husband of deceased named and charge sheeted accused yet he is liable to be enlarged on bail. The bonafide of the applicant is explicit from the fact that immediately after the unfortunate incident occurred on 11.7.2022, the victim was rushed to Community Health Centre, from where she was taken to District Hospital. Ultimately, she was taken to medical college, Deoria. The deceased was under medication from 12.7.2022 to 18.7.2022. Ultimately, she succumbed to the injuries sustained by her. The aforesais facts were in the knowledge of the family of the deceased. However, neither her statement was got recorded under sections 161 Cr.P.C. nor her dying declaration was recorded. The autopsy surgeon, found that the deceased had not sustained any fatal or grievous injuries. The autopsy surgeon found visible injuries i.e. abrassion and ligature mark. The cause of death of the deceased is asphyxia due to ante mortem injury. In view of above, deceased could not breath which fact is established from the ligature mark found on her body.

Learned counsel for applicant then invited the attention of the Court to the F.I.R. and on basis thereof he contends that not only physical but mental cruelty was committed upon the deceased in pursuit of demand of dowry. However, the said allegation has not been substantiated. There is no averment with regard to day, date, time and manner of demand. He, therefore contends that allegation made in F.I.R. with regard to additional demand of dowry not only vague but also a bald allegation Referring to the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, he submits that aforesaid allegation is liable to be ignored by this Court at this stage. Attention of the Court was then invited to the statement of first informant, which is at page 34 of the paper book and on basis thereof he contends that an improvement has been made in the prosecution story as unfolded in the F.I.R. as the first informant has alleged that a demand of Rs. 40,000/- was made. He contends that the first informant has thus gone beyond the basis prosecution case, which is otherwise not acceptable

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 30.9.2022. As such, he has undergone more than eleven months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicant stands crystalized. Up to this stage no such circumstance has emerged, necessitating the custodial arrest of applicant. To buttress his submission he has relied upon the judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373 . It is thus urged 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. and learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is the husband of the deceased a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The occurrence giving rise to present criminal proceedings has occurred on 11.7.2022, i.e. just after two months from the date of marriage of applicant. Moreover, the occurrence has taken place in the house of applicant and within seven years of marriage. As such, the death of the deceased is a dowry death. By reason of above, the burden is upon the applicant himself not only to explain the manner of occurrence in terms of Section 106 and but also his innocence under section 113 of the Evidence Act. However, applicant has miserably failed to dislodge the aforesaid burden up to this stage. It is thus urged that no sympathy be shown in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that though the applicant is husband of the deceased, a named and charge sheeted accused, the occurrence has occurred even before expiry of two months from the date of marriage of applicant, yet the court finds that upto the attempt was made to commit suicide the applicant her to hospital for medical treatment, the factum that the wife of applicant is undergoing treatment on account of attempt made by her to commit suicide was in the knowledge of the family members of the wife of applicant, no attempt was made to get the statement of the victim recorded under section 161 Cr.P.C. or her dying declaration, the bonafide of the applicant is further evident from the fact that the deceased had not sustained any grievous of fatal injuries on her person, the allegation made in the F.I.R. that physical and mental cruelty was committed upon the deceased in pursuit of demand of dowry are vague and bald allegations being devoid of material particulars, the statement of the first informant recorded under section 161 Cr.P.C. is beyond the basic prosecution case as unfolded in the F.I.R, in view of judgement of Supreme Court in Manoj and Ors Vs. State of Maharashtra, (1999) 4 SCC 268, Subhash Kumar Vs. Stte of Uttarakhand (2009) 6 SCC 641, Amar Nath Jha Vs. Nand Kishore Singh and Ors. (2018) 9 SCC 137 the allegations made int eh F.I.R. regarding commission of physical and mental cruelty upon demand are liable to be ignored by this Court at this stage, in view of judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others (supra) police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized, inspite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the period of incarceration undergone, the clean antecedents of applicant but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Dinesh Prasad, be released on bail in the aforesaid case crime number on furnishing a personal bond and 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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 THE HIM/HER 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/her 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 :- 24.8.2023

Arshad