Babulal @ Babloo vs State Of U.P.
2023 Latest Caselaw 23137 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:171131
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34778 of 2023
 

 
Applicant :- Babulal @ Babloo
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Vikas Tripathi
 
Counsel for Opposite Party :- G.A.,Vivekanand Yadav
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Vikas Tripathi, the learned counsel for applicant, the learned A.G.A. for State and Mr. Vivekanand Yadav, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Babulal @ Babloo, seeking his enlargement on bail in Case Crime No. 383 of 2023, under Section 306 IPC, Police Station-Gida, District-Gorakhpur during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 27.06.2023, a prompt FIR dated 27.06.2023 was lodged by first informant-Mahendra (brother of the deceased) and was registered as Case Crime No. 383 of 2023, under Sections 302, 120B IPC, Police Station-Gida, District-Gorakhpur. In the aforesaid FIR, 2 persons namely- (1) Babloo-applicant herein (husband of the deceased) and (2) Bansmati (mother-in-law) have been nominated as named accused.

5. The marriage of applicant-Babulal @ Babloo was solemnized with Hosila 18 years prior to the occurrence giving rise to present criminal proceedings in accordance with Hindu Rites and Customs. From the aforesaid wedlock, 2 daughters and 1 son were born. Unfortunately, after expiry of a period of more than 18 years from the date of marriage, the wife of applicant died as she committed suicide by hanging herself on 27.06.2023. It is the case of applicant that immediately after the occurrence, information was given to the brother of the deceased which fact is clearly established from the statement of the son of the applicant, which is on record at page 33/34 of the paper book.

6. Subsequent to above, the post mortem of the deceased was conducted. In the opinion of the Autopsy Surgeon, the cause of death of the deceased was opined as Asphyxia as a result of ante-mortem injuries. The Autopsy Surgeon found following ante-mortem injuries on the body of the deceased:-

"1. Ligature mark (9) on front of neck of size 30 cm x 1.5 cm, 2 cm below upper Lt. ear 7 cm below from chin 5 cm below from Rt. ear. Ligature on cutting parchment like (9) on opered proxitim congested hyoid bone.

2. Contusion swelling over back of abrasion 3 cm x 2 cm on cutting skin underneath hematoma.

3. Contusion swelling over Lt. lateral aspect of thigh of size 7 cm x 5 cm on cutting skin under neath hematoma."

7. Ultimately, the Investigating Officer, on the basis of above as well as material collected by him during course of investigation, submitted the charge sheet dated 12.08.2023 whereby applicant alone has been charge sheeted under Section 306 IPC.

8. Learned counsel for applicant contends that though applicant is the husband of the deceased, a named and charge sheeted accused yet he is liable to be enlarged on bail.

9. It is next contended that though the FIR was lodged under Section 302 IPC but as per the material on record, the case was converted under Section 306 IPC i.e. a suicidal death. An offence under Section 306 IPC has to be decided on conjoint reading of Sections 107 and 306 IPC. However, up to this stage, it cannot be said that abetment, instigation or conspiracy is made out against applicant. There is nothing on record to show that the deceased committed suicide on account of an immediate act of applicant either. The bona-fide of the applicant is clearly explicit from the statement of the son of the deceased/applicant, copy of which is on record at page 33 of the paper book. To buttress his submission, he has relied upon by the following judgments:-

(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.

10. 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 01.07.2023. As such, he has undergone more than 1 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. 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.

11. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused and also the husband of the deceased, therefore, he does not deserve any indulgence by this Court. 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.

12. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that though applicant is the husband of the deceased, a named and charge sheeted accused, yet he is liable to be enlarged on bail inasmuch as, an offence under Section 306 IPC has to be decided on the conjoint reading of Sections 107 and 306 IPC, however, up to this stage, it cannot be said that abetment, instigation or conspiracy is made out against applicant,there is nothing on record to show that the deceased committed suicide on account of an immediate act of applicant either, the judgment of this Court and the Supreme Court referred to above, the bona-fide of the applicant is clearly explicit from the statement of the son of the deceased/applicant, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the clean antecedents of applicant, the period of incarceration undergone, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), but without making any comments on the merits of the case, applicant has made out a case for bail.

13. Accordingly, the bail application is allowed.

14. Let the applicant-Babulal @ Babloo, be released on bail in the aforesaid case crime number on his 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.

15. 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 :- 24.8.2023

Vinay