Sameer vs State Of U.P.
2023 Latest Caselaw 15132 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

?Neutral Citation No. - 2023:AHC:104536
 
Court No. - 76
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 11178 of 2023
 

 
Applicant :- Sameer
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Ajay Kumar Yadav,Shashi Dhar Pandey
 
Counsel for Opposite Party :- G.A.,Akhilendra Yadav
 

 
Hon'ble Saurabh Shyam Shamshery,J.

Heard Sri Ajay Kumar Yadav, learned counsel for applicant, Sri Jitendra Singh, Advocate, holding brief of Sri Akhilendra Yadav, learned counsel for complainant/informant and Sri Sunil Srivastava, learned A.G.A. for State.

Applicant- Sameer, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. in Case Crime No.183 of 2022 under Sections 306 I.P.C., Police Station- Fariha, District - Firozabad after rejection of his Bail Application vide order dated 15.02.2023 passed by Sessions Judge, Firozabad.

Applicant before this Court is related to deceased as her nephew. In the present case, deceased was a widow, having three children aged about 17, 13 and 12 years respectively. Initially, brother of deceased lodged an F.I.R. on 15.10.2022 for offence under Sections 147, 323, 302, 318 against six named accused persons including applicant that named accused used to harass deceased so that she may vacate the house and it was informed that Khairun, mother of applicant and Ruksana, other aunt of applicant has given adulterated milk to deceased who immediately after its intake started vomiting and later she was admitted in the hospital but could not survive.

According to post-mortem report, immediate cause of death remained uncertain and viscera was preserved. According to viscera report Aluminium Phosphide was found.

Learned counsel for applicant submits that initially investigation was towards the allegation of murder of deceased, however, later, on the basis of statement of independent witnesses namely Laljeet and Rihana it was revealed that deceased was in love affair with present applicant and they used to have romantic talk, however, since marriage of victim was fixed, therefore, deceased went into depression and committed suicide by taking aforesaid poison. Charge-sheet has been filed only against applicant for the offence of abetment of suicide.

Learned counsel submits that in the entire investigation, not a single evidence has been collected to connect the applicant with the offence of abetment of suicide. He placed reliance on the judgment passed by this Court in Criminal Misc. Bail Application No. 20591 of 2021 (Ravindra Pratap Shahi alias Pappu Shahi vs State of U.P.). Learned counsel for applicant submits that applicant is behind the bars since 24.01.2023 and in case, he is released on bail, he will not misuse the liberty of bail and will cooperate in trial.

Learned A.G.A. for State as well as learned counsel for informant has not able to dispute that initially investigation was conducted, considering it to be a case of murder, however, later on charge-sheet was filed only under Section 306 I.P.C. They also submit that evidence qua to offence of abetment of suicide were the above referred statements of witnesses only.

This Court has discussed the law of Abetment of suicide and law on bail in Criminal Misc. Bail Application No. 20591 of 2021 (Ravindra Pratap Shahi alias Pappu Shahi vs State of U.P.) and for reference the same is mentioned hereinafter:-

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(iii) ?? ???????? ??, ?? ????? ???? ?? ? ????, ?? ?? ???????? ?? ??????????? ??, ?? ?? ????? ?? ?????? ?? ??? ??? ??????? ?? ??????????? ??????? ??? ?????? ???? ????? ?????????, ?????? ? ????????? ?????? ?? ???? ???? ????? ? ?? ?????? ????? ??? ????? ??????? ?? ???????? ???? ?? ???? ??? ?????? ?? ????? ??????? ????? ???? ?????, ??????? ???-??? ?? ??????? ?? ??????? ???? ?? ??????? ???????????? ?? ??????? ?? ???????? ???? ??? ????? ?? ?????? ???? ?? ???? ???? ???? ????? ?? ???? ??????? ???? ?? ????? ?? ????, ????? ????? ?? ???????? ? ?? ?????

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(ii) ?????????? ??? ?? ?????? ????????? ????? ???? ??, ????? ???? ??????? ?? ?????? ?? ???????? ?????? ???? ???? ????? ?? ?????? ???? ???? ??? ????????? ???? ?? ??? ?????? ?? ?????? ???? ?? ??? ???????? ?? ?? ?? ??? ????????? ????? ???? ?????? ??? ?? ???? ???? ???????? ?? ???????? ??? ????? ???? ???????

(iii) ?????????? ?? ????? ?? ????? ???? ?? ??? ???? ????? ?? ????? ???? ?? ??? ???????? ?? ??????? ???????? ?????? ?????? ?????? ??? ?? ????????? ???? ?????? ??? ?? ????? ???? ?? ???, ??? ??????? ???????? ?? ??????? ???? ?????? ?? ???????? ?? ???? ???????? ???? ?? ?????? ??? ???? ??????? ?? ????????? ?? ??? ?? ???? ?? ??? ?????? ?? ???? ?? ??? ?? ????? ???? ?? ??? ??? ????? ?????? ?????? ??? ??? (?????- ???? ??????? ???????? ???? ?????????? ????? ? ????? (2021) 2 ?? ?? ?? 427, ???? ??? ???? ???? ????? (2018) 5 ?? ?? ?? 1, ????? ???? ??????? ????? (2020) 15 ?? ?? ?? 359, ??????? ???? ???? ????? ????? (2020) 10 ?? ?? ?? 200)"

In the present case, applicant is related to deceased as her nephew and there is a huge gap of age (deceased being elder by about 20 years). Initially F.I.R. was lodged under Section 302 I.P.C., therefore, an investigation was conducted for the same, however, it appears that later on the basis of evidence of witnesses as referred above, charge-sheet has been filed only against applicant under Section 306 I.P.C.

There is substance in the argument of learned counsel for applicant that evidence collected during investigation does not appear to have substance, that applicant has prima facie committed offence of abetment of suicide as well as taking note of Ravindra Pratap Shahi alias Pappu Shahi (supra) and judgment passed by Supreme Court in Pinakin Mahipatray Rawal Vs. State of Gujarat, (2013) 10 SCC 48 that allegation of extra marital affair may not be in itself sufficient evidence for abetment of suicide and there must be something more to prove offence of abetment of suicide (also see Velladurai Vs State Represented by the Inspector of Police, 2021 SCC OnLine SC 715).

In these circumstances, applicant who is in jail since 24.01.2023, has made out a case of bail.

Let the applicant- Sameer be released on bail in the aforesaid case crime number on 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

(ii) The applicant shall file an undertaking to the effect that he shall not seek any adjournment or exemption from appearance on the date fixed in trial. 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.

(iii) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.

(iv) The Trial Court may make all possible efforts/endeavour and try to conclude the trial expeditiously, preferably within a period of six months after release of applicant, if there is no other legal impediment.

The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.

The bail application is allowed.

It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.

Order Date :- 15.5.2023

P. Pandey