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Sarwar Ali & 3 Others vs State Of U.P. on 9 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 48

Case :- CRIMINAL APPEAL No. – 6460 of 2017

Appellant :- Sarwar Ali 3 Others

Respondent :- State Of U.P.

Counsel for Appellant :- Nazrul Islam Jafri

Counsel for Respondent :- G.A.,Amir Khan

Hon’ble Karuna Nand Bajpayee,J.

(Ref: Criminal Misc. Bail Application No.360072 of 2017)

Heard Shri Santosh Kumar Tiwari, holding brief of Shri Tripurari Pal, learned counsel for the applicants-appellants and Mr. Amir Khan, learned counsel for complainant and also learned A.G.A.

Perused the record.

Submission of counsel for the appellants is that though P.W.-1 has given statement about the demand of dowry and the resultant cruelty because of its non fulfillment but there are serious infirmities in the prosecution evidence and the impugned judgment, therefore, is not sustainable in view of the nature of evidence that has been produced. It was emphasized by the counsel that the post-mortem-report did not indicate any injury on the person of the deceased which rules out any violence that could have been committed upon her before her death. Submission is that viscera was preserved in order to ascertain the cause of death but even the report in that regard indicates that no poison or any such thing was found in the same which could indicate that she was administered anything toxic or poisonous which could have resulted in her death. Contention is that in such circumstances the death of the deceased cannot be said to be either an act of suicide or an act of homicide. It was also pointed out that a number of prosecution witnesses who were the family members of the deceased from the parental side have been produced but they have not supported the prosecution case and have given complete denial to the allegations. According to them neither any demand of dowry was made nor any cruelty was committed because of its non fulfillment. The witnesses who have not supported the prosecution case include P.W.-3, P.W.-4, P.W.-5, P.W.-6, P.W.-7, P.W.-8 and P.W.-9, who are father, mother, sister, uncle, brother-in-law and cousin uncles respectively. Submission is that in such circumstances the verdict of guilt which has been returned by the court of Sessions does not appear to be very sustainable and at least a prima facie case of bail is made out in favour of appellants. Several other submissions in order to demonstrate the falsity of the allegations made against the appellants have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the appellants have also been touched upon at length. It has also been assured on behalf of appellants that they are ready to co-operate with the process of law and shall faithfully make themselves available before the court whenever required. It has been pointed out that the appellants were on bail during the course of trial which was never misused by them. It has also been submitted that maximum period of sentence awarded to the applicants-appellants is ten years and they are in jail since 25.10.2017 and there is no likelihood of this appeal to be heard at an early date or in near future in the wake of heavy pendency of cases in the court. Counsel has attempted to point out several other inherent infirmities in the evidence and also the elements of improbability contained therein and it has been argued that with such infirmities on record there is a reasonable prospect of this appeal being allowed after final hearing takes place.

Learned A.G.A. as well as learned counsel for the complainant have opposed the prayer for bail. The counsel appearing for complainant has submitted that the deceased died within seven years of her marriage and the onus to explain the death of the deceased was on the accused-appellants in which they have failed and the explanation as has been offered by them that the deceased was on her family way and as a result of a fall she got some complications in her pregnancy which resulted in her death, was not a very tenable explanation and it should be deemed to be a death under abnormal circumstances, and therefore, the bail could not be granted.

After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the nature of evidence, the period of detention already undergone and the unlikelihood of early conclusion of appeal, this Court is of the view that the appellants may be enlarged on bail.

Let the appellants-Sarwar Ali, Smt. Zulekha, Tariq and Mushahid, convicted and sentenced in S.T. No.995 of 2011, arising out of Case Crime No.251 of 2011, u/s 498A, 304B I.P.C. and Section ¾ of Dowry Prohibition Act, P.S.- Sahaswan, District-Budaun be released on bail on their executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

On acceptance of bail bonds and personal bonds, the lower court concerned shall transmit the photostat copies thereof to this Court for being kept on the record.

(Order on Appeal)

List this appeal in due course for hearing before appropriate bench after preparing the paper book.

Order Date :- 9.5.2018

M. Kumar

 

 

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