Allahabad High Court
Diwakar Dhali vs State Of U.P. on 20 March, 2023
Bench: Krishan Pahal
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 59012 of 2022
Applicant :- Diwakar Dhali
Opposite Party :- State of U.P.
Counsel for Applicant :- Vikrant Gupta
Counsel for Opposite Party :- G.A.
Hon'ble Krishan Pahal,J.
1. List has been revised.
2. Heard Shri Vikrant Gupta, learned counsel for the applicant as well as Shri Yogesh Mishra, learned A.G.A. for the State and perused the record.
3. Applicant seeks bail in Case Crime No.121 of 2022, under Sections 498A, 323, 306 I.P.C., Police Station Bilaspur, District Rampur, during the pendency of trial.
4. As per prosecution story, the marriage of the applicant was solemnized with the deceased person as per Hindu Rites about ten years before her death. The applicant and other co-accused persons are said to have subjected her to cruelty and levelled several allegations thereby denigrating her stating her to be of loose character, whereby the deceased person is stated to have committed suicide by consuming some insecticides. The deceased before her death is stated to have informed her family members that the applicant and other co-accused persons have beaten her up and forcibly administered some poison to her.
5. Learned counsel for the applicant has stated that the applicant is absolutely innocent and has been falsely implicated in the present case. The applicant and the deceased persons had two children out of their wedlock. The cause of death could not be ascertained, as such the viscera of the deceased was preserved. The Organochloro insecticide has been found in it at the FSL. Learned counsel has further stated that no ingredients of Section 306 I.P.C. are made out as there is no direct overt act is assigned to the applicant of abetting the deceased to commit suicide. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. There is no criminal history of the applicant. The applicant is languishing in jail since 04.08.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.
6. Learned counsel for the applicant has placed much reliance on the judgment of Apex Court passed in the case of Mariano Anto Bruno and Another vs. Inspector of Police, 2022 SCC OnLine SC 1387. The relevant part of the judgment is quoted hereinasunder:-
"40. A bare perusal of the impugned judgment indicates that the High Court erred in recording the finding that there is sufficient evidence for convicting the appellants under Section 306 IPC losing sight of the fact that there exists no evidence on record indicating that the deceased was meted out with harassment by the appellants just before her death. It is well-settled that not only there has to be evidence of continuous harassment, but there should be cogent evidence to establish a positive action by the accused which should more or less be proximate to the time of occurrence, which action can said to have led or compelled the person to commit suicide.
42. To convict a person under Section 306 IPC, there has to be clear mens rea to commit offence. It also requires an active act or direct act which leads deceased to commit suicide finding no other option and the act must be such reflecting intention of the accused to push deceased into such a position that he commits suicide. The prosecution has to establish beyond reasonable doubt that the deceased committed suicide and Appellant No. 1 abetted the commission of suicide of the deceased. In the present case, both the elements are absent.
44. This Court has time and again reiterated that before convicting an accused under Section 306 IPC, the Court must scrupulously examine the facts and circumstances of the case and also assess the evidence adduced before it in order to find out whether cruelty and harassment meted out to the victim had left the victim with no other alternative but to put an end to her life. It is also to be borne in mind that in cases of alleged abetment of suicide, there must be proof of direct or indirect acts of incitement to the commission of suicide. Merely on the allegation of harassment without their being any positive action proximate to the time of occurrence on the part of the accused which led or compelled the person to commit suicide, conviction in terms of Section 306 IPC is not sustainable."
7. Per contra, learned A.G.A. has vehemently opposed the bail application and has stated that the applicant had levelled the allegations of bad character against the victim, as such she was drawn to commit suicide, although he could not dispute the fact that there is no direct overt act assigned to the applicant.
8. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, taking into consideration the judgment of Apex Court passed in the case of Mariano Anto Bruno (supra) and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
9. Let the applicant- Diwakar Dhali involved in aforementioned case crime number be released on bail on 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.
(iv) 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.
(v) 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.
10. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.
11. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Order Date :- 20.3.2023
Ravi Kant
