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Ajit Kumar Mishra vs State Of U.P. on 16 July, 2019

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 74

Case :- CRIMINAL MISC. IInd BAIL APPLICATION No. – 18680 of 2017

Applicant :- Ajit Kumar Mishra

Opposite Party :- State Of U.P.

Counsel for Applicant :- Om Prakash Mishra,Brijesh Sahai

Counsel for Opposite Party :- G.A.,Rupendra Kumar Mishra

Hon’ble Arvind Kumar Mishra-I,J.

Heard Sri Brijesh Sahai, learned Senior Counsel assisted by Sri O.P. Mishra, learned counsel for the applicant, Sri Om Narain Tripathi, learned A.G.A. assisted by Sri M.C. Dwivedi, Sri Bhanu Prakash Singh, Sri Sanjay Kumar Rajbhar, Brief Holders for the State and perused the material available on record.

By way of the instant application, the applicant seeks second bail in Case Crime No.97 of 2016, under Sections 498A, Section304B, Section313, Section316, Section504 I.P.C. and 3/4 SectionDowry Prohibition Act, Police Station Aurai, District S.R. Nagar (Bhadohi). The first bail application has been rejected by a coordinate Bench of this Court on 02.03.2017.

As a measure of fresh ground, claim on behalf of the applicant is confined to the ambit that in this case, admittedly, there are two dying declarations of the deceased. In the first dying declaration that was recorded by the doctor concerned, initially the story of suicide was described by the deceased and the case of suicide was mooted as such. Subsequently, after a week, another dying declaration, second in line, was recorded by none other than Naib Tehsildar concerned then the story was changed that the applicant poured kerosene oil upon the deceased and set her on fire.

In the wake of the aforesaid two dying declarations and in the wake of the examination of the doctor as PW-4 and Naib Tehsildar as PW-7 before the trial court, contention is that the story set up in the first dying declaration – that may be previous dying declaration for the purpose of consideration of this bail – makes out a complete theory of suicide committed by the deceased herself on account of some altercation with her mother-in-law. The doctor PW-4 has substantiated fact of suicide in his examination-in-chief.

Now insofar as statement of Naib Tehsildar PW-7 who recorded subsequent and second dying declaration in question is concerned, he has merely stated in his examination before the trial court that whatever was stated by the deceased was written by him but he has not categorized as to what was, in fact, stated to him by the deceased. That way, out of the two dying declarations, the previous one given by the deceased to the doctor (PW-4) will prevail. In case the applicant is admitted to bail, there is no possibility of his absconding or misusing the liberty of bail. The applicant has no criminal history and is languishing in jail since 22.11.2016.

Per contra, learned A.G.A. while replying to the aforesaid arguments has contended that at this juncture, how can it be conclusively rated and meritorized that out of the two dying declarations previous dying declaration is final and conclusive and the same is to be accepted by the trial court as such. There is no such law for the time being when the trial is going on and the prosecution evidence is in process of being recorded by the trial court that one of the two dying declarations will be given supremacy over the other and it alone will be accepted conclusively by the trial court, therefore, the entire arguments on the aforesaid aspect of the case falls flat. Assuming it to be that there are two dying declarations still the merit of the dying declaration recorded by the Naib Tehsildar cannot be minimized by arguing that Naib Tehsildar has categorically stated (in his testimony) that whatever was stated, was recorded by him without elaborating the contents of dying declaration. It can be noticed that whatever was the dying declaration of the deceased, the same cannot be doubted and thrown away, at this stage as alleged, the entire statement of the deceased has got to be read as a whole and forms substantive piece of evidence at this juncture. It cannot be said that the story of suicide is the only ultimate story accepted and proved conclusively. Allegations are specific.

Considered the rival submissions, perused the material brought on record and the enormity of the offence. No good ground is made out for bail.

Consequently, the instant bail application is rejected at this stage.

However, the trial court is directed to expedite the proceeding of the trial and conclude the same in accordance with law, expeditiously, preferably within a period of six months from the date of production of the certified copy of this order before it, if there is no legal impediment in its way.

It is made clear that observation made in this order shall have no bearing on the merits of the case.

Order Date :- 16.7.2019

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