Suraj Alias Lukka vs State Of U.P.
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Allahabad High Court

Suraj Alias Lukka vs State Of U.P. on 27 February, 2025

Author: Sanjay Kumar Singh

Bench: Sanjay Kumar Singh

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:26969
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2501 of 2025
 

 
Applicant :- Suraj Alias Lukka
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Sudhanshu Pratap Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Sanjay Kumar Singh,J.
 

1. Heard learned counsel for the applicant as well as learned Additional Government Advocate representing the State.

2. By means of this application, applicant-Suraj alias Lukka, who is involved in Case Crime No. 223 of 2023, under Sections 498A, 304B of I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station Rasoolabad, District Kanpur Dehat, seeks enlargement on bail during the pendency of trial.

3. Brief facts of the case, which are required to be stated are that the complainant-Ram Babu Rathaur, lodged a first information report on 13.06.2023 against the applicant-Suraj stating inter-alia that marriage of Reena (deceased) with the applicant was solemnized on 07.06.2023 and applicant was demanding a motorcycle, one ring and chain. On non fulfilment of his demand of dowry, he had threatened to kill her. Today family members of the applicant gave information that his daughter is hanging from a tree outside the village. On reaching there, he saw that body of her daughter was hanging from the tree. There were many injuries on her body. Therefore, he believes that the applicant killed her and then hanged her from the tree.

4. Main substratum of argument of learned counsel for the applicant is that the deceased committed suicide by hanging herself. No mark of injury was found on her body. The complainant in his cross-examination before the trial Court, denied the allegation of demand of dowry from the side of the accused. It is also submitted that since the deceased was having love affair with a boy, namely, Rahul, therefore, she was not happy with her marriage to the applicant, due to which she committed suicide. Therefore, the applicant who is languishing in jail since 14.06.2023 having no criminal history to his credit may be enlarged on bail.

5. Per contra, learned Additional Government Advocate for the State vehemently opposed the prayer for bail of the applicant by contending that the examination-in-chief of the complainant, who lodged F.I.R. was recorded before the trial court as PW-1 on 21.03.2024, in which he has supported the prosecution case but his cross-examination was conducted on 04.09.2024 after about six months, hence there was enough time to win over the prosecution witness. Under the facts of the case, possibility of winning over the prosecution witness No.1 from the side of accused cannot be ruled out. He also vehemently urged that under the facts and circumstances of the case, Section 113A and 113B of the Evidence Act also attracted, therefore, considering the gravity of offence, the bail application of the applicant is liable to be rejected.

6. Having heard learned counsel for the parties and examined the matter in its entirety, I find that it is not in dispute that the deceased died her unnatural death within six days of her marriage and her dead body was found hanging from a tree. So far as the submission of learned counsel for the applicant, that in cross-examination, PW-1 has been declared hostile, is concerned, I find that examination-in-chief and cross-examination of prosecution witnesses No. 1 has not been recorded on the same day and there was a gap of about six months between examination-in-chief and cross-examination, whereas Hon'ble the Apex Court in the case of Rajesh Yadav and Another Etc. Vs. State of U.P., 2022 LiveLaw (SC) 137 has settled the law giving directions that to avoid the possibility of influence over the prosecution witnesses, examination-in-chief and cross-examination of any prosecution witness must be recorded on the same day but in the present case the said direction has not been followed. Hence, the possibility of winning over the victim and her mother from the side of accused cannot be ruled out. The relevant paragraph Nos. 25 and 39 of Rajesh Yadav (Supra) are quoted as under:-

"Evidentiary Value of a Final Report:

25. Section 173(2) of the CrPC calls upon the investigating officer to file his final report before the court. It being a report, is nothing but a piece of evidence. It forms a mere opinion of the investigating officer on the materials collected by him. He takes note of the offence and thereafter, conducts an investigation to identify the offender, the truth of which can only be decided by the court. The aforesaid conclusion would lead to the position that the evidence of the investigating officer is not indispensable. The evidence is required for corroboration and contradiction of the other material witnesses as he is the one who links and presents them before the court. Even assuming that the investigating officer has not deposed before the court or has not cooperated sufficiently, an accused is not entitled for acquittal solely on that basis, when there are other incriminating evidence available on record. In Lahu Kamlakar Patil v. State of Maharashtra, (2013) 6 SCC 417, this Court held:

"18. Keeping in view the aforesaid position of law, the testimony of PW 1 has to be appreciated. He has admitted his signature in the FIR but has given the excuse that it was taken on a blank paper. The same could have been clarified by the investigating officer, but for some reason, the investigating officer has not been examined by the prosecution. It is an accepted principle that non-examination of the investigating officer is not fatal to the prosecution case. In Behari Prasad v. State of Bihar [(1996) 2 SCC 317: 1996 SCC (Cri) 271], this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik v. State of Bihar [(2000) 9 SCC 153: 2000 SCC (Cri) 1186] , it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire material brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Section 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar, [(2001) 6 SCC 407: 2001 SCC (Cri) 1148], Rattanlal v. State of J&K [(2007) 13 SCC 18: (2009) 2 SCC (Cri) 349] and Ravishwar Manjhi v. State of Jharkhand [(2008) 16 SCC 561: (2010) 4 SCC (Cri) 50], has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution."

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39. Before we part with this case, we are constrained to record our anguish on the deliberate attempt to derail the quest for justice. Day in and day out, we are witnessing the sorry state of affairs in which the private witnesses turn hostile for obvious reasons. This Court has already expressed its views on the need for a legislative remedy to curtail such menace. Notwithstanding the above stated directions issued by this court in Vinod Kumar (supra), we take judicial note of the factual scenario that the trial courts are adjourning the cross examination of the private witnesses after the conclusion of the cross examination without any rhyme or reason, at the drop of a hat. Long adjournments are being given after the completion of the chief examination, which only helps the defense to win them over at times, with the passage of time. Thus, we deem it appropriate to reiterate that the trial courts shall endeavor to complete the examination of the private witnesses both chief and cross on the same day as far as possible. To further curtail this menace, we would expect the trial courts to take up the examination of the private witnesses first, before proceeding with that of the official witnesses. A copy of this judgment shall be circulated to all the trial courts, to be facilitated through the respective High Courts."

7. The Apex Court in State of U.P. Vs. Ramesh Prasad Mishra (1996) 10 SCC 360 has also settled the law if there are contradiction in the examination-in-chief and cross-examination of any prosecution witness, the conviction is also possible on the basis of examination-in-chief, if the same is of sterling quality and is being supported from other material on record and attending circumstances.

8. This Court is of the view that conclusion from the statement of any witness shall be drawn by the trial Court considering his/her statement in toto not in isolation. It is well settled that a man can tell a lie but record and circumstances do not. Since the allegation of the prosecution and the defence of the accused are still open to be urged before the trial court, therefore, this Court in exercise of powers under Section 439 Cr.P.C. is not examining the statement of prosecution witnesses meticulously, so that it may not effect the merits of the trial.

9. Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant and severity of punishment, I do not find any good ground to release the applicant on bail.

10. Accordingly, the bail application is rejected.

11. It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.

Order Date :- 27.2.2025

Kashifa