Allahabad High Court
Budhsen vs State Of U.P. on 6 September, 2023
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2023:AHC:176715
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36456 of 2023
Applicant :- Budhsen
Opposite Party :- State of U.P.
Counsel for Applicant :- Karunesh Narayan Tripathi
Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr.Karunesh Narayan Tripathi, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by the applicantBudhsen seeking his enlargement on bail in Case Crime No. 41 of 2023, under Section 302 IPC, Police Station Bisharatganj, District Bareilly during the pendency of the trial.
4. Record shows that in respect of an incident which is alleged to have been occurred on 5.3.2023, a delayed FIR dated 6.3.2023 was lodged by first informant namely Ramratan and was registered asCase Crime No. 0041 of 2023, under Section 302 IPC, Police Station Bisharatganj, District Bareilly. In the aforesaid F.I.R. two persons namely (i) Reena and (ii)Budhsen (applicant herein) have been nominated as named accused.
5. The gravamen of the allegations made in the F.I.R. is to the effect that named accused have caused the death of the deceased namely Deepak Kumar by strangulating him.
6. After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned Case Crime Number in terms of Chapter XII Cr.P.C. The inquest (panchnama) of the deceased was conducted on 6.3.2023. In the opinion of the witnesses of inquest (panch-witnesses) the nature of death of the deceased was characterized as suicidal. Thereafter the post mortem of the body of the deceased was conducted. The doctor who conducted the autopsy of the body of the deceased found following ante-mortem injuries on her body:-
(i) Ligature mark present in front of neck (below chin and above thyroid)
Size- 30 cm. X 1.5 cm along with gap- 4 cm.
Ligature Mark from (Rt.) Ear- 6 cm.
Ligature Mark from (Lt.) Ear- 4 cm.
Ligature Mark from chin- 5 cm.
Margin- Abnraded, Subcutaneous tissue underneath ligature mark is with and glistering.
-Face Pale- Bleeding present left angle of mouth, hands clenched.
7. In the opinion of the autopsy surgeon the cause of death of the deceased was Asphyxia as a result of ante-mortem Hanging.
8. During course of investigation Investigating Officer examined first informant and other witnesses namely Belawati (mother of the deceased) and Rinku (Brother of the deceased). However, in spite of categorical medical evidence on record, Investigating Officer submitted the charge sheet dated 18.03.2023, whereby both the named accused have been charge sheeted under Section 302 I.P.C.
9. Learned counsel for applicant contends that though the applicant has been charge sheeted under Section 302 I.P.C. However, the medical evidence i.e. the post mortem report of the deceased does not support the charge sheet. As per the medical evidence on record, it is explicitly clear that the deceased died on account of having committed suicide by hanging herself. In view of above, he submits that no offence under Section 302 I.P.C. can be said to have been committed by the applicant. It is then contended that as per the material which has emerged during the course of investigation, present case shall not travel beyond 306 IPC, however no investigation in the light of above has been conducted till date. 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 7.3.2023. As such he has undergone almost six months of incarceration. 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 the applicant stands crystallized. However up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during pendency of trial. 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 cooperate with the trial.
10. Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this court. The deceased was a young boy aged about 17 years who committed suicide on account of the act of the present applicant. As such, no sympathy be shown by this court in favour of the applicant. However he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
11. Havingheard the learned counsel for applicant, the learned A.G.A. for State, and upon perusal of record, evidence, accusations made, complicity of accused, nature and gravity of offence and submissions urged by the learned counsel for the applicant as noted above and coupled with the fact that 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 the applicant stands crystallized, yet in spite of above, the learned A.G.A. could not point out any circumstance from the record, necessitating the custodial arrest of applicant during the pendency of the trial, the judgment of the Supreme Court in Sumit Subhash Chandra Gangwal and another Vs. State of Maharashtra and another 2023 Live Law SC 373(5), the clean antecedents of applicant, the period of incarceration undergone, as per the Post-Mortem report of the deceased, the nature of death of the deceased is suicidal, therefore no offence under Section 302 IPC can be said to have been committed, but without making any comments on the merits of the case the applicant has made out a case for bail.
12. Accordingly, the bail application is allowed.
13. Let the applicant Budhsen involved in aforesaid case be released on bail on his 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.
ix. 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.
x. 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.
14. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.
Order Date :- 6.9.2023
Aiman
