Raj Kumar vs State Of U.P.
2023 Latest Caselaw 28722 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:199873
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42685 of 2023
 

 
Applicant :- Raj Kumar
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Shiv Sharan Tripathi,Akhilesh Singh,Shivam Yadav
 
Counsel for Opposite Party :- G.A.,Satendra Kumar
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Akhilesh Singh, the learned counsel for applicant, the learned A.G.A. for State and Mr. Satendra Kumar, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Raj Kumar, seeking his enlargement on bail in Case Crime No. 73 of 2023, under Sections 498-A, 304-B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Dado, District-Aligarh during the pendency of trial.

4. Record shows that marriage of applicant was solemnized with Poonam on 01.05.2019. From the aforesaid wedlock, a son namely Ayush was born who is now said to be aged about 3 years. However, just after expiry of a period of 3 years and 10 months from the date of marriage of applicant, an unfortunate incident occurred on 09.03.2023 in which, the wife of applicant died as she committed suicide by hanging herself.

5. Learned counsel for applicant submits that though applicant is the husband of the deceased, a named and charge sheeted accused inasmuch as, the charge sheet has been submitted against applicant and others on 11.06.2023 yet the applicant is liable to be enlarged on bail. The deceased was a short tempered lady and she took the extreme step of terminating her life by committing suicide by hanging herself. The bona-fide of the applicant is explicit from the fact that except for the ligature mark, no other external or internal ante-mortem injury was found on the body of deceased by the Autopsy Surgeon, who conducted autopsy of the body of deceased. Considering the fact that the son of the applicant is aged about 3 years, the learned counsel for applicant submits that by no stretch of imagination, it can be imagined that applicant shall ensure the death of his wife. According to the learned counsel for applicant, the allegations made in the FIR with regard to additional demand of dowry to the tune of Rs. 10 lacs and a four wheeler are vague and bald allegations inasmuch as, the same are devoid of material particulars. No attempt has been made by the first informant to explain the same in his statement under Section 161 Cr.P.C. Referring to the judgment of the Supreme Court in Kahkashan Kausar @ Sonam and Others Vs. State of Bihar and Others, (2022) 6 SCC 599, he submits that the said allegations are liable to be ignored by this Court at this stage. Considering the nature of death of deceased, the applicant is not liable to be awarded the maximum sentence under Section 304-B IPC.

6. 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 22.03.2023. As such, he has undergone more than 6 and 1/2 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. On the above premise, he 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 shall co-operate with the trial.

7. Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that since applicant is the husband of the deceased, a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The death of the deceased has occurred within 7 years from the date of her marriage and at her marital home. As such, the death of deceased is dowry death. The deceased was a young lady aged about 32 years, whose death has occurred in an unnatural circumstance. Since, the applicant is an inmate of the house and also the husband of the deceased, therefore, the burden is upon the applicant to not only explain the manner of occurrence but also is innocence in terms of Sections 106 and 113B of the Evidence Act. However, applicant has miserably failed to discharge the said burden up to this stage. It is thus urged that no sympathy be shown by this Court in favour of applicant. However, the learned A.G.A. and the learned counsel representing first informant could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

8. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that prima-facie, the death of deceased is a suicidal death, except for the ligature mark, no other ante-mortem injury was found by the Autopsy Surgeon on the body of deceased, the allegation made in the FIR with regard to the demand of additional dowry and a four wheeler are vague and bald allegations inasmuch as, the same are devoid of material particulars, no attempt has been made by the first informant to explain the same in his statement under Section 161 Cr.P.C., in view of the judgment of Supreme Court in Kahkashan Kausar @ Sonam (Supra), the said allegations are liable to be ignored by this Court at this stage, considering the nature of death of deceased, applicant is not liable to be awarded the maximum sentence under Section 304-B IPC, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, yet in spite of above, the learned A.G.A. and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the precarious condition of the applicant inasmuch as, the son of the applicant is aged about 3 years, therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant in opposition to the present application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

9. Accordingly, the bail application is allowed.

10. Let the applicant-Raj Kumar, be released on bail in the aforesaid case crime number on his 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.

11. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 16.10.2023

Vinay