Deepak Kumar vs State Of U.P.
2023 Latest Caselaw 27773 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195010
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 34571 of 2023
 

 
Applicant :- Deepak Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Istiyaq Ali,Ali Hasan
 
Counsel for Opposite Party :- G.A.,Satendra Kumar Singh
 

 
Hon'ble Rajeev Misra,J.

Heard Mr. Istiyaq Ali, the learned counsel for applicant, the learned A.G.A. for State and Mr. Satendra Kumar Singh, the learned counsel for first informant.

Perused the record.

This application for bail has been filed by applicant- Deepak Kumar, seeking his enlargement on bail in Case Crime No. 309 of 2022, under Section 498-A, 304B, 120B IPC and Section 3/4 D.P. Act, Police Station- Bhelupur, District Varanasi during the pendency of trial.

Record shows that marriage of applicant Deepak Kumar was solemnized with Swati Rawat on 12.12.2019. However, just before expiry of a period of little more than two years from the date of marriage of applicant, an unfortunate incident occurred on 20.1.2022, in which the wife of applicant consumed some poisonous substance and ultimately died.

The information regarding aforesaid incident was not given by applicant or any of the family members of applicant at concerned Police Station but by Ishwar Prasad Rawat (cousin brother of deceased).

On the aforesaid information, the inquest (panchayatnama) of the deceased was conducted on 20.1.2022. In the opinion of the witnesses of inquest (panch witnesses), no definite opinion could be given regarding cause of death of deceased. As such, nature of death of deceased could not be ascertained. Thereafter the Post mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, who conducted autopsy of the body of deceased, cause of death of deceased could not be ascertained, therefore, viscera was preserved. However, autopsy surgeon did not find any ante-mortem injuries on the body of the deceased.

After expiry of period of more than 3 and 1/2 months, the first informant filed an application under section 156(3) Cr.P.C before concerned Magistrate, praying therein that direction be issued to the Station House Officer of concerned Police Station to register an F.I.R. regarding the aforementioned occurrence. The same was allowed.

Consequently, an F.I.R. dated 4.9.2022 came to be registered as Case Crime No. 309 of 2022, under Section 498-A, 304B, 120B IPC and Section 3/4 D.P. Act, Police Station- Bhelupur, District Varanasi. In the aforesaid F.I.R., seven persons namely, Deepak Kumar (husband), Samari Devi (mother-in-law), Ghooran Prasad (father-in-law) Kanhaiya Rawat (Jeth) Savita Rawat (Jethani) Palak (niece) and Kajal (Nanad) of the deceased have been nominated as named accused.

After completion of statutory investigation of concerned case crime number in terms of Chapter XII Cr.P.C, Investigating Officer submitted charge sheet dated 21.12.2022, whereby and whereunder two of the named accused i.e. Deepak Kumar and Samari Devi, have been charge sheeted, whereas other named accused have been exculpated.

Learned counsel for applicant submits that though the applicant is husband of the deceased, a named and charge sheeted accused, yet he is liable to be enlarged on bail. It is next submitted that the deceased was a short tempered lady and she has taken the extreme step of terminating her life by consuming poisonous substance namely, Aluminium Phosphide. He, further contends that allegation made in F.I.R. with regard to additional demand of dowry to the tune of Rs. 5 Lakhs is not only vague but also a bald allegation as the same is devoid of material particulars. Referring to the judgment of Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, he submits that in view of above aforesaid allegation is liable to be ignored by this Court at this stage.

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 17.11.2022. As such, he has undergone more than eleven months of incarceration. Police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. Up to this stage no such circumstance has emerged, necessitating the custodial arrest of applicant. It is thus urged 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.

Per contra, the learned A.G.A. and the learned counsel for first informant have opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. The death of deceased has occurred at her marital home and before expiry of period of seven years from the date of her marriage. As such the death of deceased is dowry death. The deceased was young lady aged about 27 years who has died in unnatural circumstances. Since occurrence has taken place in the house of applicant, before the expiry of seven years from the date of marriage, therefore burden is upon applicant not only to explain the manner of occurence under Section 106 but also his innocence under section 113 of the Evidence Act. However, the applicant has miserably failed to discharge the said burden upto this stage. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant, with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that prima facie the death of the deceased is a suicidal death, the bonafide of the applicant is explicit from the fact that no external injury was found on the body of deceased, as per F.S.L. report, the cause of death of deceased was on account of consumption of Aluminium Phosphide, the allegations made in the F.I.R. with regard to commission of physical and mental cruelty upon deceased on account of non fulfillment of demand of additional dowry are liable to be ignored by this Court, being vague and balled allegations as they are devoid of material particulars, , the judgment of Supreme Court in Kahkahsan Kausar @ Sonam and Others Vs. state of Bihar and Others (2022) 6 SCC 599, police report in terms of Section 173 (2) Cr.P.C. having been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record, necessitating the custodial arrest of applicant during the pendency of trial, judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373, the clean antecedents of applicant, the period of incarceration undergone, therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail, but without making any comment on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Deepak Kumar, 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 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.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her 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 :- 10.10.2023

Arshad