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Shrikant Kumar & Another vs The State Of U.P. on 9 May, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 48

Case :- CRIMINAL APPEAL No. – 6362 of 2017

Appellant :- Shrikant Kumar Another

Respondent :- The State Of U.P.

Counsel for Appellant :- Ram Manohar Kashyap

Counsel for Respondent :- G.A.

Hon’ble Karuna Nand Bajpayee,J.

Order on Criminal Misc. Bail Application No.356424 of 2017.

Heard learned counsel for the appellants and learned A.G.A.

Perused the record.

Submission of learned counsel for the appellants is that the appellant no. 1 is the brother-in-law (devar) while the appellant no. 2 is the sister-in-law (nanad) of the deceased and therefore, their case should be held distinguishable from that of the husband and they should be released on bail for that reason. Further submission is that during the course of investigation the complicity of the appellant no. 2 in commission of crime was not found substantiated and therefore, she was not charge sheeted. It was also pointed out that the appellant no. 2 was summoned under Section 319 of Cr.P.C. by the trial court. Further submission is that though the prosecution witnesses have supported the prosecution case in their examination-in-chief but so far as the P.Ws. 2 and 3 are concerned, during the course of their cross-examination, they resiled and went back on their words and did not support the prosecution case, which also speaks about falsity of the allegations.

Learned A.G.A. has opposed the prayer for bail and has submitted that all the prosecution witnesses have given intact statement against the accused persons, which is highly incriminating. According to which the accused persons were constantly pressurizing for additional demand of dowry in the form of rupees one lac and a motorcycle etc. and because of non-fulfilment of the same, she was being tortured. It was emphasized that the marriage took place on 29.5.2009 while she was not allowed to live even for a year after marriage and she died under abnormal unnatural circumstances as a result of bodily burns on 25.12.2009 itself. Submission is that during this short period of her matrimonial life whenever she came over to talk with her parents or the other family members of her parental side, she conveyed the pressing demand of dowry and resultant cruelty which was meted out to her. The evidence to this effect has been produced in the court. Further submission is that though for the reason best known to the witness during the course of cross-examination, they have tried to resile and go back on their words, so far as the P.W.-1, who is real brother of the deceased, is concerned, his evidence is completely unassailable and intact and he never turned hostile. It was emphasized that most incriminating testimony of case is that of P.W.-1 for the reason that he soon before the death of the deceased, was present in the house of the deceased where he had gone on 24.12.2009 itself. At that stage also the deceased had conveyed to him that the appellants and another co-accused were pressurizing for rupees one lac, one motorcycle and a golden chain and when she was expressing her inability for the same, she was being beaten up and was put under threat of life. Her brother P.W.-1 tried to pacify her and on the day of incident i.e. 25.12.2009 at about 7.00 A.M. in the morning he went to the neighbouring village at his mausi’s house. Soon thereafter at about 9.00 A.M. he was informed by the co-villagers telephonically that his sister has been burnt. P.W.-1 reached rushing on the spot on a motorcycle where his sister was reeling under severe pain in badly burnt condition. It was in that stage that she gave her statement to her brother and told him that the appellants and the other co-accused persons with conspiracy of her own husband, have consigned her to flames and she should be taken to the hospital immediately. It was in this condition that her own brother- P.W.-1 took her to the hospital at Saidpur from where she was referred to Ghazipur Hospital and in the way, the P.W.-1 gave information to his other family members, who also rushed and met with him in the way. When the other family members of parental side came the deceased gave the same narration about the incident to them also. Her condition worsened and before she could be taken to Ghazipur Hospital, she succumbed to the burn injuries and died. Submission is that the statements given by the deceased soon before her death will be admissible under Section 32 of Indian Evidence Act and are in the form of oral dying declaration. The presence of P.W.-1 is not under dispute as it was he, who himself took the deceased to the hospital. It was also submitted that the fact that the deceased was not taken to the hospital unless the brother of the deceased himself arrived, is also highly incriminating circumstance against the accused persons, who did not take care to do the needful in order to save the life of the deceased. Submission is that the death of the deceased under unnatural and abnormal circumstances as a result of bodily burn injuries within seven months of her marriage coupled with the intact evidence of P.W.-1 about the demand of dowry and the resultant cruelty meted to her because of its non-fulfilment read with statement of the deceased given to the brother soon before her death are together enough circumstances to conclusively hold the accused guilty. Moreover, the accused are under heavy onus to explain unnatural and abnormal death of the deceased in which they have utterly failed and there is hardly any convincing explanation as to how she met with death within such a short period after her marriage.

Perused the record in the light of the submissions made by learned counsel for the appellants and learned A.G.A.

After considering the overall facts and circumstances of the case, this Court is of the view that though the evidence with regard to all the accused is virtually on the same footing as has been produced in the court, but the complicity of the appellant no. 2 was not found substantiated during the course of investigation and even the charge sheet was not submitted against her is a distinguishing feature. It is also revealed from para-15 of the bail application that  though at the time of incident, the appellant no. 2 was unmarried, but now she is married and is also carrying a child of eight months in her lap. For all these reasons, this Court is of the considered opinion that she may be released on bail on humanitarian grounds.

So far as the case of the appellant no. 1 Shri Kant Kumar is concerned, this Court does not see any such mitigating circumstances in his favour and therefore does not deem it to be a fit case to release him on bail. The prayer for bail of the appellant no. 1 therefore stands rejected.

Let the appellant no.2  Gyanti @ Jamuni, convicted and sentenced in S.T. No. 236 of 2009, State vs. Raghupati Ram and others, Case Crime No. 1889 of 2009, u/ss. 304B/34, 498A I.P.C. Section 4 D.P. Act, P.S.- Saidpur,  District- Ghazipur, be released on bail on her executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

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

Order Date :- 9.5.2018

Naresh

 

 

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