Allahabad High Court
Sandeep Kumar vs State Of U.P. on 6 May, 2024
Author: Saurabh Shyam Shamshery
Bench: Saurabh Shyam Shamshery
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. - 2024:AHC:80723
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40368 of 2023
Applicant :- Sandeep Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Pawan Kumar Srivastava,Siya Ram Verma
Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Pawan Kumar Srivastava, learned counsel for applicant and Sri Mithilesh Kumar, learned AGA for State.
2. This is second bail application filed by applicant-Sandeep Kumar in Case Crime No. 96 of 2022, under Sections 498A, 304B IPC and 3/4 Dowry Prohibition Act, Police Station Adalhat, District Mirzapur.
3. First bail application of applicant was rejected by reasoned order dated 23.03.2023 and relevant part thereof is reproduced hereinafter:
?7. Applicant is husband of deceased. She died due to ante mortem burn injuries (80%) just after completing her first marriage anniversary. There are evidence that applicant has committed cruelty with regard to demand of dowry. It is not normal that a young bride commit suicide by burning herself while she was carrying a female foetus of eight weeks, except she was disturbed and since there are evidence that applicant had committed cruelty with regard to demand dowry, therefore, the same may be a ground for deceased to take such drastic step to end her life. There are consistent evidence that applicant has demanded dowry of an Apache Motorcycle.
8. Observations made with regard to nature of death is only on the basis of material available and it will not be a reason for Trial Court not to frame a charge for offence other than mentioned in charge sheet, if circumstances so warrant.
9. No case of bail is made out. Application stands dismissed.?
4. In pursuance of an order passed by this Court, Trial Court has submitted report dated 27.09.2023 that out of 11 proposed witnesses, four have already been examined. At this stage, learned counsel for applicant submits that meanwhile PW-5 has also been examined.
5. Learned counsel for applicant submits that PW-1 has made material contradictions in his cross-examination to the extent that later on he was examined by prosecution. He further submits that PW-2 during trial has not supported case of prosecution in her examination-in-chief and was declared hostile. He further points out that PWs-3 and 4 have also declared hostile as they have not supported case of prosecution. Learned counsel submits that in view of above nature of evidence before Trial Court chances of conviction of application appears to be very remote.
6. Learned AGA appearing for State has opposed the prayer for bail, however, he has not disputed the above nature of evidence at this stage.
7. In view of nature of evidence before Trial Court at this stage where out of five prosecution witnesses, four have not supported case of prosecution and are declared hostile, therefore, Court takes note that on basis of above nature of evidence possibility of conviction appears to be very remote. Trial Court concerned is directed to take note of a recent judgment passed by Supreme Court in Anees Vs. State Govt. of NCT, 2024 INSC 368. Relevant para 69 of the judgment is reproduced hereinafter:
?69. Over a period of time, we have noticed, while hearing criminal appeals, that there is practically no effective and meaningful cross-examination by the Public Prosecutor of a hostile witness. All that the Public Prosecutor would do is to confront the hostile witness with his/her police statement recorded under Section 161 of the Cr.P.C. and contradict him/her with the same. The only thing that the Public Prosecutor would do is to bring the contradictions on record and thereafter prove such contradictions through the evidence of the Investigating Officer. This is not sufficient. The object of the cross-examination is to impeach the accuracy, credibility and general value of the evidence given in-chief; to sift the facts already stated by the witness; to detect and expose the discrepancy or to elicit the suppressed facts which will support the case of the cross-examining party. What we are trying to convey is that it is the duty of the Public Prosecutor to cross-examine a hostile witness in detail and try to elucidate the truth & also establish that the witness is speaking lie and has deliberately resiled from his police statement recorded under Section 161 of the Cr.P.C. A good, seasoned and experienced Public Prosecutor will not only bring the contradictions on record, but will also cross-examine the hostile witness at length to establish that he or she had actually witnessed the incident as narrated in his/her police statement.?
8. In view of above, I am of considered opinion that present is a fit case to grant bail to applicant. However, applicant is directed to remain present on each and every date as and when required by Trial Court during trial and in case any application for exemption on vague ground is filed, the same shall be a ground for Trial Court to cancel bail immediately.
9. Let the applicant-Sandeep 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 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.
10. 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.
11. The bail application is allowed.
12. It is made clear that the observations made hereinabove are only for the purpose of adjudicating the present bail application.
Order Date :- 6.5.2024
AK
