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Fariyad vs State Of U.P. on 12 July, 2021

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HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. – 7

Case :- CRIMINAL MISC. BAIL APPLICATION No. – 11418 of 2020

Applicant :- Fariyad

Opposite Party :- State of U.P.

Counsel for Applicant :- Ajay Kumar

Counsel for Opposite Party :- G.A.

Hon’ble Rajeev Misra,J.

Heard Mr. Ajay Kumar, learned counsel for applicant, who is available on audio/video link. Learned A.G.A. representing State is also available.

This third bail application has been filed by applicant- Fariyad seeking his enlargement on bail in connection with Case Crime No.192 of 2018, under Sections- 498A, 323, 506, 304B I.P.C. and Section 3/4 of D.P. Act, Police Station- Garhmukteshwar, District- Hapur, during pendency of trial.

First bail application of applicant was rejected vide order dated 12.10.2018. For ready reference order dated 12.10.2018 is reproduced herein under:-

“Heard Mr. Awadhesh Kumar Mishra, learned counsel for the applicant and the learned AGA for the State.

This bail application has been filed by the applicant-Fariyad seeking his enlargement on bail during trial in Case Crime No. 192 of 2018, under Sections 498A, 323, 506, 304B IPC and 3/4 D.P. Act, P.S.-Garhmukteshwar, District-Hapur.

From the record, it appears that the marriage of the applicant namely Fariyad was solemnized with Nagme Jahan on 06.11.2016. However, even before the expiry of a period of one year from the date of marriage of the applicant, an unfortunate incident occurred on 06.05.2018, in which the wife of the applicant died by committing suicide by hanging herself. From the wedlock of the applicant and the deceased a male child was also born, who is said to be aged about 2 years on date. The inquest on the body of the deceased was conducted on 06.05.2018, on the information given by the brother of the deceased. According to the inquest report, the death of the deceased was said to be homicidal. The post mortem of the deceased was conducted on 7.5.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased was asphyxia due to ante mortem hanging. The F.I.R. in respect of the incident which occurred on 6.5.2018 was lodged on the same day i.e. 6.5.2018 not by the applicant or any other family member of the applicant, but by the brother of the deceased namely Asif. The said F.I.R. came to be registered as Case Crime No. 192 of 2018, under Sections 498A, 323, 506, 304B IPC and 3/4 D.P. Act. In the aforesaid F.I.R., four persons namely Fariyad the husband, Abda the mother-in-law, Rubi and Sana both sisters-in-law of the deceased were nominated as the named accused persons. Upon completion of the statutory investigation of the aforesaid case crime number, the police has submitted a charge sheet on 6.6.2018 only against the husband i.e. the present applicant. What has happened subsequent to the submission of the charge sheet has not been stated in the affidavit filed in support of the bail application.

Learned counsel for the applicant submits that the incident in which the wife of the applicant has died has occurred within 7 years from the date of the marriage of the applicant. Consequently, the presumption arising out of an offence under section 304 B IPC is standing against the applicant. Further the applicant is innocent and is liable to be enlarged on bail.

Elaborating his submissions, he submits that two real sisters namely Nagme Jahan and Rukhsana were married in the same village. The applicant is the husband of the deceased Nagme Jahan and the brother-in-law of the deceased namely Sattar husband of Rukhsana developed illicit relation with the deceased. When the aforesaid fact came in the knowledge of Rukhsana the wife of Sattar, she in order to save her dignity has committed suicide. It is also submitted that the brother-in-law of the deceased Sattar is of loose character. An F.I.R. under section 376 IPC is also made out against him.

On the cumulative strength of the aforesaid submissions, it is urged that the applicant is innocent and he cannot be said to have committed any such act, on the basis of which the deceased was forced to commit suicide.

Per contra, the learned AGA opposed the prayer for bail. He submits that the explanation offered by the applicant does not appear to be plausible or satisfactory. Consequently, it is urged that the reason why the deceased committed suicide remains unexplained before this Court. It is also urged that the explanation offered by the applicant for consideration of the bail application in the light of the evidence on record before the Court below has already been considered at the time of disposal of the bail application by the Court below. It is thus submitted that the bail application of the applicant is liable to be rejected.

Having heard the learned counsel for the parties and without expressing any opinion on the merit of the case, I am of the view that no case for bail is made out by the applicant.

Accordingly, the bail application is rejected.

Trial Court is directed to expedite the Trial of the above mentioned case.”

Subsequently, applicant filed second bail application, which was rejected by this Court on account of non-prosecution vide order dated 22.01.2020. For ready reference order dated 22.01.2020 is reproduced herein under:-

“Case called out in the revised list.

No one appears on behalf of applicant to press this application. Learned A.G.A. representing opposite party No. 1 is present.

As no one appears to press this application, it is, accordingly, dismissed for want of prosecution.”

Learned counsel for applicant contends that applicant is innocent. It is next contended that from the material brought on record, it is evident that deceased died as she committed suicide by hanging herself. Except for the ligature mark, there is no other ante-mortem injury on the body of deceased. Applicant is husband of deceased, but he is in jail since 14.05.2018. As such on date applicant has been under incarceration for more than three years. On the aforesaid premise, it is thus urged that applicant is liable to be enlarged on bail.

Per contra, learned A.G.A. has opposed this bail application. However, he could not dispute the facts noted above as well as submissions urged by learned counsel for applicant.

Having heard learned counsel for the parties and upon perusal of material brought on record, coupled with the fact that except for ligature mark, there is no other ante-mortem injury on the body of deceased and applicant has already undergone three years of incarceration. I am of the view that applicant has made out a case for bail.

Consequently, the third bail application is allowed.

Let the applicant- Fariyad, be released on bail inCase Crime No.192 of 2018, under Sections- 498A, 323, 506, 304B I.P.C. and Section 3/4 of D.P. Act, Police Station- Garhmukteshwar, District- Hapur, on furnishing a personal bond and two sureties each in the like amount to the satisfaction of magistrate/court concerned, subject to following conditions:-

(i) The applicant will not tamper with prosecution evidence.

(ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

(iii) The applicant will not indulge in any unlawful activities.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever.

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.

Order Date :- 12.7.2021/Saif

 

 

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