Allahabad High Court
Jabir vs State Of U.P. on 20 March, 2023
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 75
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 17805 of 2022
Applicant :- Jabir
Opposite Party :- State of U.P.
Counsel for Applicant :- Vidya Shanker Pandey
Counsel for Opposite Party :- G.A.,Rajnish Sahai Saxena,Ram Bahadur
Hon'ble Sanjay Kumar Singh,J.
Heard learned counsel for the applicant, learned Additional Government Advocate representing the State as well as learned counsel for the informant.
By means of this application under Section 439 of Cr.P.C., applicant, who is involved in Case Crime No. 291 of 2019, S.T. No. 571 of 2021, under Sections 498A, 304B of I.P.C. and Section 3/4 D.P. Act, Police Station Bhamora, District Bareilly, seeks enlargement on bail during the pendency of trial.
As per prosecution case in brief, informant- Jameel Ahmad, who is father of Shabbo (hereinafter referred to as 'the deceased') lodged F.I.R. on 23.10.2019, under Sections 307, 494 I.P.C., against present applicant Jabir, Aaseena, contractor-Veeresh Yadav and one unknown person with the allegations inter-alia that marriage of his daughter Shabbo was solemnized in Delhi, but later on in the year 2016, she married with the applicant. After her marriage when she came to know that the applicant-Jabir had remarried, she opposed it. Since then Jabir and his mother has tried to kill Shabbo several time. On making complaint in this regard, they started keeping her with them but yesterday the accused persons in order to kill, dropped her on the ground by putting a wooden piece on her neck pressed with his feet. Thinking that she had died they also took her ornaments and mobile away with them and thrown her dead body on the railway crossing. Villagers have given information to mobile police by dialing 100, on which police reached the spot and got his daughter admitted in CHC Bhamora, but seeing her condition serious, she was referred to district hospital Bareilly, where her condition is serious.
It is argued by learned counsel for the applicant that the applicant has been falsely implicated in this case. There is no independent witness of the alleged incident. In fact litigation between the applicant and deceased was going on. Deceased was mentally weak. On account of some altercation between deceased and her parents, she went outside of her house and she being annoyed went outside of her house. Therefore, it is also possible that some other persons killed her after taking her ornaments. The dying declaration of the deceased has not been recorded and there is no recovery of incriminating article from the possession of the applicant. Relying upon the judgment of High Court of Calcutta, in the case of Bipul Ranjan Paul vs. State of West Bengal 2007, LawSuit(Cal) 420, argued that provisions of Section 304-B of I.P.C. are not attracted in case of homicidal death of a married women and under the facts of the case charges must have been framed under Section 302 of I.P.C. and not under Section 304-B of I.P.C. The applicant is languishing in jail since 23.12.2019.
Per contra, learned A.G.A. for the State as well as learned counsel for the informant opposed the prayer for bail of the applicant by contending that after culmination of investigation charge sheet has been submitted under Section 498A, 304B I.P.C. and section 3/4 D.P. Act against the applicant. Deceased- Shaboo died her unnatural death within seven years of her marriage with the applicant and she has received two injuries on her body. As per post-mortem report of the deceased, cause of her death is due to asphyxia shock and ante-mortem injury (strangulation). Under the facts and circumstances of the case, presumption of dowry death of the victim/deceased under Section 113-B of the Evidence Act shall be drawn against the applicant. So far as submission of learned counsel for the applicant that since it is a case of strangulation therefore no offence under section 498A, 304B I.P.C. and section 3/4 D.P.Act is made out against the applicant is concerned that it is well settled that in such matters generally alternative charges under section 302 I.P.C. are framed against the accused.
Having heard learned counsel for the parties and examined the matter in its entirety, I find that there is no dispute that the applicant is husband of the deceased- Shabbo who died due to 'strangulation', which is a heinous offence. In this case F.I.R. was lodged under Sections 307, 494 I.P.C., but after the death of the Shabbo, charge sheet has been submitted under Section 498A, 304B I.P.C. and section 3/4 D.P. Act against present applicant Jabir. The charge can be altered at any stage of the trial as per the material evidence available on record, which is the subject matter of the trial. It is well settled that the question whether it is murder punishable under Section 302 IPC or a dowry death punishable under Section 304-B IPC depends upon the fact situation and the evidence in the case. If there is evidence whether direct or circumstantial to prima-facie support a charge under Section 302 IPC the trial court can and indeed ought to frame a charge of murder punishable under Section 302 IPC, which would then be the main charge and not an alternative charge as is erroneously assumed in some quarters. If the main charge of murder is not proved against the accused at the trial, the court can look into the evidence to determine whether the alternative charge of dowry death punishable under Section 304-B is established. So far as judgment relied upon by the learned counsel for the applicant is concerned, I find that the same is distinguishable on facts and is not helpful to the applicant in considering the instant bail application of the applicant. It is well settled that every case turns on its own facts. Even one additional or different fact may make a big difference between the conclusion in two cases, because even a single significant detail may alter the entire aspect.
In view of the above considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injuries,severity of punishment and the manner in which crime has been committed, I do not find any good ground to release the applicant on bail.
Accordingly, the bail application is rejected.
It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.
Order Date :- 20.3.2023
Kashifa
