Devendra vs State Of U.P.
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Allahabad High Court

Devendra vs State Of U.P. on 1 August, 2024

Author: Rajeev Misra

Bench: Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2024:AHC:124297
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46605 of 2023
 

 
Applicant :- Devendra
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Atul Kumar Tiwari
 
Counsel for Opposite Party :- G.A.,Vijay Singh Rathore
 

 
Hon'ble Rajeev Misra,J.
 

Heard Mr. Anoop Trivedi, the learned Senior Counsel assisted by Mr. Atul Kumar Tiwari, the learned counsel for applicant, the learned A.G.A. for State and Mr. Vijay Singh Rathore, the learned counsel representing first informant.

This application for bail has been filed by applicant Devendra seeking his enlargement on bail in Case Crime No.76 of 2023, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Rampura, district Jalaun during the pendency of trial.

Perused the record.

At the very outset, the learned Senior Counsel for applicant contends that co-accused Veerendra (father-in-law) and Smt. Sukh Devi (mother-in-law) of the deceased have already been enlarged on bail by this Court vide order dated 15.09.2023 passed in Criminal Misc. Bail Application No.39197 of 2023 (Veerendra and Another Vs. State of U.P.). For ready reference, the same is reproduced herein-under :

"1. Heard Mr. Atul Kumar Tiwari, the learned counsel for applicants, the learned A.G.A. for State and Mr. Vijay Singh Rathore, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicants-Veerendra and Smt. Sukh Devi, seeking their enlargement on bail in Case Crime No. 76 of 2023, under Sections 498A, 304B IPC and Sections 3/4 Dowry Prohibition Act, Police Station-Rampura, District-Jalaun during the pendency of trial.

5. Learned counsel for applicant contends that though applicants are named/charge sheeted accused inasmuch as the charge sheet has been submitted against applicant on 30.07.2023 along with other co-accused yet the applicants are liable to be enlarged on bail. Applicant-1-Veerendra is the father-in-law whereas applicant-2-Smt. Sukh Devi is the mother-in-law of the deceased. Attention of the Court was invited to the provisions contained in proviso to Section 437 Cr.P.C. and on basis thereof, it is contended that since applicant-2 Smt. Sukh Devi is a lady, therefore, she is liable to be enlarged on bail.

6. According to the learned counsel for applicants, the death of the deceased is prima-facie a sucidal death. The deceased was a short tempered lady and she has taken an extreme step of terminating her life by committing suicide. The bona-fide of the applicants is explicit from the post mortem report of the deceased wherein Autopsy Surgeon has not found any other external ante-mortem injuries on the body of deceased except for the ligature mark. According to the learned counsel for applicant, the applicants could not be said to be the beneficiary of the alleged demand of dowry. It is true that the marriage of deceased was solemnized with the son of the applicants on 30.01.2023, an unfortunate incident occurred after expiry of a period of 1 year and 4 months from the date of marriage of son of applicants yet the applicants could not be held guilty for the crime in question. The allegations made in the FIR with regard to the demand of additional dowry are vague and bald allegations inasmuch as, the same are devoid of material particulars. 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 since the allegations with regard to the demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non fulfillment of demand of additional dowry are not evidenced by material particulars either in the FIR or in the statement of the first informant recorded under Section 161 Cr.P.C., therefore, the same are liable to be ignored by this Court at this stage. The bona-fide of applicants is explicit from the fact that the information regarding the occurrence was given by the son of the applicants himself at the concerned police station as well as to his in-laws. In view of the nature of death of the deceased, the applicants are not liable to be awarded the maximum sentence under Section 304B IPC.

7. Even otherwise, applicants are clean antecedents having no criminal history to their credit except the present one. Applicants are in jail since 14.07.2023. As such, they have undergone more than 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 applicants stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he submits that applicants are liable to be enlarged on bail. In case, the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

8. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicants are named as well as charge sheeted accused, therefore, they do not deserve any indulgence by this Court. The marriage of the deceased with the son of applicants was solemnized on 30.01.2023 and just after expiry of a period of 1 year and 4 months from the date of marriage, the deceased committed suicide by hanging herself on 25.05.2023. As such, the death of deceased is an unnatural death. The occurrence has occurred in the house of applicants and within 7 years of marriage. As such, the death of the deceased is a dowry death. Consequently, applicants are under burden not only to explain the manner of occurrence but also their innocence in terms of Sections 106 and 113B of the Evidence Act. However, the applicants have miserably failed to discharge the said burden up to this stage. It is thus contended that no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

9. Having heard, the learned counsel for applicants, 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 and complicity of accused coupled with the fact that applicant-2 Smt. Sukh Devi is the mother-in-law of deceased, therefore, applicant-2 being a lady, is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., applicant-1 Virendra is also an old man aged about 60 years, applicants are father-in-law and mother-in-law of deceased, prima-facie, applicants can not be said to be the beneficiary of alleged demand of additional dowry, the allegations made in the FIR with regard to the demand of additional dowry and commission of physical and mental cruelty upon deceased for non fulfillment of additional demand of dowry have not been evidenced by material particulars, as such, the same are vague and bald allegations, consequently, by virtue of law laid down by Supreme Court in Kahkashan Kausar @ Sonam (Supra), the same are liable to be ignored by this Court at this stage, prima-facie, the death of deceased is a suicidal death inasmuch as, except for the ligature mark no other external ante-mortem injury was found on the body of deceased, 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 applicants stands crystallized, however, in spire of above, the learned A.G.A. for State and the learned counsel representing first informant could not point out any such circumstance from the record necessitating the custodial arrest of the applicants during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), the clean antecedents of applicants, the period of incarceration undergone, but without making any comments on the merits of the case, applicants have made out a case for bail.

10. Accordingly, the bail application is allowed.

11. Let the applicants-Veerendra and Smt. Sukh Devi, be released on bail in the aforesaid case crime number on their 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.

12. However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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."

It is then contended by the learned Senior Counsel that applicant is the husband of the deceased, a named and charge-sheeted accused yet he is liable to be enlarged on bail. Applicant is innocent. He has been falsely implicated in aforementioned case crime number. With reference to the material on record, learned Senior Counsel contends that it is the applicant who has informed the police about the occurrence giving rise to present criminal proceedings. A categorical averment to this effect has been made in paragraph 16 of the affidavit filed in support of present application for bail. No counter affidavit has been filed by the learned A.G.A. or the learned counsel representing first informant.

According to the learned Senior counsel for applicant, the bona fide of applicant is further explicit from the fact that no external or internal ante-mortem injury was found on the body of deceased. In the opinion of autopsy surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased was shock and asphyxia as a result of ante-mortem hanging. As such, prima facie the death of deceased is a suicidal death and not homicidal. As such, even in case of conviction the applicant is not liable to be awarded the maximum sentence punishable for an offence under Section 304-B IPC. On the above premise and also the submissions urged in support of bail application of co-accused which have been noted in the order, referred to above, the learned Senior Counsel for applicant contends that applicant is liable to be enlarged on bail.

Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 04.06.2023. As such, he has undergone more than one year and almost two months of incarceration. The police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted against the applicant therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized. However, up to this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. He, therefore, 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.

Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is the husband of deceased, a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. The deceased was a young lady. The death of the deceased is highly suspicious as it has occurred just after expiry of one year and four months from the date of marriage of deceased with applicant. The occurrence giving rise to present criminal proceedings has occurred in the house of applicant and within a period of seven years from the date of marriage of deceased with applicant. As such, the same is highly un-natural. Since the occurrence has taken place within seven years of marriage of the deceased and that too in her matrimonial home, as such, the death of the deceased is a dowry death. By reason of above, the burden is upon the applicant to not only explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act. However, upto this stage, the applicant has miserably failed to discharge the said burden. They, therefore, contend that 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 Senior Counsel for applicant in support of present application for bail with reference to the record at this stage.

Having heard the learned Senior Counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that though applicant is the husband of deceased, a named and charge-sheeted accused yet this Court finds that as per the opinion of autopsy surgeon the cause of death of deceased is shock and asphyxia as a result of ante-mortem hanging, by reason of above, prima facie, the death of the deceased is suicidal and not homicidal, in view of above the applicant is not liable to be awarded the maximum sentence for the offence under Section 304-B IPC in case of conviction, as per the post-mortem report of the deceased no external or internal ante-mortem injury was found on the body of deceased by the autopsy surgeon, the same speaks of the bona fide of applicant, similarly situate and circumstanced co-accused i.e. father-in-law and mother-in-law of the deceased have already been enlarged on bail by this Court, except for the fact that applicant is the husband of the deceased the learned A.G.A. could not point out any such distinguishing feature in the case of present applicant so as to distinguish his case from aforementioned bailed out co-accused and deny him bail, the police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted as such the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized, yet in spite of above the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the proceeding of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5), the clean antecedents of the applicant, the period of incarceration undergone, 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, the applicant has made out a case for bail.

Accordingly, the bail application is allowed.

Let the applicant Devendra, involved in aforesaid case crime number, be released on bail on his furnishing a personal bond with 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C.

(iii) 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 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 him 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 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 :- 1.8.2024.

Rks.