Sarman vs State Of U.P. Through Secretary ...
2023 Latest Caselaw 19327 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:151085
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30449 of 2023
 

 
Applicant :- Sarman
 
Opposite Party :- State Of U.P. Through Secretary Home
 
Counsel for Applicant :- Narendra Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr.Narendra Kumar Singh, 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 the applicantSarman seeking his enlargement on bail in Case Crime No. 0009 of 2017, under Sections 498-A,302-B IPC and 3/4 D.P. Act, Police Station Mohammadabad, District Farrukhabad during the pendency of the trial.

4. Record shows that in respect of an incident which is alleged to have occurred on 31.12.2016, a delayed F.I.R. dated 6.1.2017 was lodged by first informant Smt. Ishwari Devi (mother of the deceased) and was registered asCase Crime No. 0009 of 2017, under Sections 498-A,304-B IPC and 3/4 D.P. Act, Police Station Mohammadabad, District Farrukhabad. In the aforesaid F.I.R two persons namely (i) Sarman (applicant herein) and (ii) Vedram have been nominated as named accused.

5. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of the daughter of the first informant namely Javitri was solemnized with the applicant Sarman on 5.4.2011. However on 31.12.2016 at around 7:00 A.M. named accused caused the death of the daughter of the first informant by first pouring kerosene oil upon her and thereafter immolating her. The F.I.R. also records that the daughter of the first informant was taken to the hospital and ultimately she succumbed to the burn injuries sustained by her.

6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr.P.C. The inquest (panchnama) of the body of the deceased was conducted on 5.1.2017. In the opinion of the witnesses of inquest (panch-witnesses), the nature of death of the deceased could not be characterized as to whether the same is homicidal or suicidal. Subsequent to above, the post mortem of the body of the deceased was conducted. The doctor who conducted the autopsy of the body of deceased opined that the cause of death of the deceased was shock and septicemia due to ante-mortem injuries. The autopsy surgeon found following ante-mortem injuries on the body of the deceased:-

(i) Superficial to deep burn present all over body except both buttocks. Back of both thigh, part of both lower leg, both foot 7 sole, perineum region skull hair, eye brow, eye lashes, axillary hair, burn & singing.

(ii) Pus present all over the burn area.

7. During the 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 him, he came to the conclusion that the complicity of applicant is fully established in the crime in question. He, accordingly submitted the charge-sheet dated 21.4.2017, whereby the applicant has been charge-sheeted under Section 498A, 302B IPC whereas the other named accused have been exculpated.

8. It is apposite to mention here that the occurrence giving rise to the present criminal proceeding is alleged to have occurred on 31.12.2016, the victim was immediately rushed to hospital and she remained under treatment till 5.1.2017. However in the interregnum neither the statement of victim was recorded under Section 161 Cr.P.C. nor her dying declaration was recorded in terms of Section 32 of the Evidence Act.

9. Learned counsel for applicant contends that thought the applicant is the husband of the deceased and a named as well as charge-sheeted accused yet he is liable to be enlarge on bail. He has then invited the attention of the Court to the F.I.R. giving rise to the present criminal proceeding and on basis thereof he contends that no allegations with regard to demand of additional dowry or commission of physical or mental cruelty upon deceased for non fulfillment of additional demand of dowry has been made in the F.I.R. The bona-fide of the applicant is further explicit from the fact that immediately after the occurrence it is the applicant who took the victim to the hospital and she was under treatment. While she was alive for almost five days from the date of incident. No statement of the deceased was recorded under Section 161 Cr.P.C. nor her dying declaration was recorded under Section 32 of the Evidence Act. He further submits that applicant is in jail since 20.4.2017. As such he has undergone more that six years and three months of incarceration. The trial has already commenced by way of Sessions Trial No. 140 of 2017 (Sarman Vs. State of U.P.), under Section 498A, 304B, Police Station Mohammadabad, District Farrukhabad and is now pending in the Court of Additional Sessions Judge/F.T.C. Court No. 1. Up to this stage, only two prosecution witnesses of fact have been exmined, even though the trial is pending since 2017 i.e. for the last five years.

10. On the above premise, he contends that trial of the applicant has been delayed on account of conduct of the prosecution itself. He, therefore, submits that since applicant is not guilty of causing delay in the conclusion of trial, therefore, it is an additional circumstance to enlarge the applicant on bail. Reliance is placed upon the judgment of Supreme Court in R.S. Nayak vs. A.R. Antulay and another, 1992 (1) SCC-225 in support of above submission. It is lastly contended that right to speedy to speedy trial is a fundamental right of the accused and the said right of the applicant has been clearly infringed. On the cumulative strength of above, learned counsel for applicant 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 cooperate with the trial.

11. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that applicant is the husband of the deceased and a named as well as charged sheeted accused. The occurrence in question has occurred in the house of the applicant and within seven years of marriage. Therefore, the applicant is under burden not only to explain the manner of incident but also his innocence in terms of Section 106 and 113B of the Evidence Act. However the said burden has not been discharged by the applicant upto this stage. However, he 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 and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and coupled with the fact that though the applicant is a named as well as charge-sheeted accused and the husband of the deceased, the trial has commenced in the year 2017, up to this stage, the prosecution has adduced only two witness of fact, the delay in the conclusion of trial cannot be attributed to the applicant, the law laid down by the Apex Court in R.S. Nayak vs. A.R. Antulay (supra), the bona fide of the applicant which is explicit from the fact the applicant himself took the victim to the hospital where she remained under treatment for five days, no statement of the victim was recorded by the Police under Section 161 Cr.P.C. nor any dying declaration of the victim was recorded, the presence of the in-laws of the applicant in the hospital as is explicit from the statement of P.W. 2, the clean antecedents of applicant, the period of incarceration undergone, but without making any comments on the merits of the case the applicant has made out a case for bail.

13. Accordingly, the bail application is allowed.

14. Let the applicantSarman involved inCase Crime No. 0009 of 2017, under Sections 498-A,302-B IPC and 3/4 D.P. Act, Police Station Mohammadabad, District Farrukhabad be released on bail on his furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

i. The applicant will not tamper with the evidence during the trial.

ii. The applicant will not pressurize/ intimidate the prosecution witness.

iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

ix. The applicant shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected.

x. The applicant 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.

15. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

Order Date :- 27.7.2023

Aiman