Dharmendra Kumar Lodhi vs State Of U.P.
2023 Latest Caselaw 23355 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:172229
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34968 of 2023
 

 
Applicant :- Dharmendra Kumar Lodhi
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Harish Chandra Yadav
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Harish Chandra Yadav, 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-Dharmendra Kumar Lodhi, seeking his enlargement on bail in Case Crime No. 287 of 2022, under Sections 498A, 304B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Thariyanv, District-Fatehpur during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 02.11.2022, a prompt FIR dated 02.11.2022 was lodged by first informant-Ram Pratap (father of the deceased) and was registered as Case Crime No. 287 of 2022, under Sections 498A, 304B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Thariyanv, District-Fatehpur. In the aforesaid FIR, 3 persons namely - (1) Dharmendra Kumar (applicant herein), (2) Malti Devi and (3) Sobha Devi have been nominated as named accused.

5. Learned counsel for applicant contends that though applicant is the husband of the deceased, a named as well as charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant on 10.01.2023 yet he is liable to be enlarged on bail. He further submits that the marriage of applicant was solemnized with the deceased on 19.05.2018. However, just after expiry of a period of more than 2 and 1/2 years from the date of marriage of the applicant, an unfortunate incident occurred on 02.11.2022 in which, the wife of the applicant died as she committed suicide by hanging herself. In the opinion of the Autopsy Surgeon, the cause of death of deceased is Asphyxia as a result of ante-mortem hanging. He, therefore, submits that as per the medical opinion, the nature of the death of deceased is suicidal. According to the learned counsel for applicant, the bona-fide of the applicant is further explicit from the fact that except for the ligature mark, no other external ante-mortem injury was found on the body of deceased.

6. The allegation made in the FIR regarding demand of additional dowry to the tune of Rs. 1,00,000/- and a motorcycle and the commission of physical and mental cruelty upon the deceased by these of the accused are simply vague and bald allegation. The allegation regarding demand of additional dowry and a motorcycle by the husband of the deceased are devoid of material particulars inasmuch as, there is no details as to how, when and in what manner, the said demand was said. Placing reliance upon the judgment of the Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, he submits that the said allegation are liable to be ignored by this Court at this stage. Similarly, the allegation regarding commission of physical and mental cruelty upon the deceased by the named accused is also vague inasmuch as, no reason has been assigned for committing physical cruelty upon deceased. He contends that there cannot be motiveless malignancy.

7. 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 05.11.2022. As such, he has undergone more than 9 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 incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. By virtue of the nature of death of deceased, the applicant is not liable to be awarded the maximum sentence for an offence under Section 304B IPC. 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.

8. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is the husband of deceased, a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The deceased was a young lady aged about 24 years who has died in unnatural circumstance. The occurrence giving rise to present criminal proceedings has occurred within 7 years of the marriage of deceased and at her marital home. Therefore, by virtue of above, the applicant is not only required to explain the manner of occurrence but also his innocence in terms of Section 106 and 113B of the Evidence Act. However, the applicant has miserably failed to discharge the said burden up to this stage. It is thus urged by the learned A.G.A. that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

9. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of applicant coupled with the fact that prima facie the death of the deceased is a suicidal death, bona fide of the applicant is apparent from the fact that no external ante-mortem injury was found on the body of the deceased, 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, 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, in view of the nature of the death of deceased, the applicant is not liable to be awarded the maximum sentence for an offence under Section 304B IPC, prima-facie, the allegation made in the FIR regarding demand of additional dowry to the tune of Rs. 1,00,000/- and a motorcycle, the commission of physical cruelty upon deceased by the named accused are not worthy of acceptance at this stage, as per the submission urged by the learned counsel for applicant, the judgment of the Supreme Court inKahkashan Kausar @ Sonam (Supra), but without making any comments on the merits of the case, applicant has made out a case for bail.

10. Accordingly, the bail application is allowed.

11. Let the applicant-Dharmendra Kumar Lodhi, 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.

12. 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 :- 25.8.2023

Vinay