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Allahabad High Court
Rohit vs State Of U.P. on 15 February, 2024
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Neutral Citation No. – 2024:AHC:26192
Court No. – 5
Case :- CRIMINAL MISC. BAIL APPLICATION No. – 1374 of 2024
Applicant :- Rohit
Opposite Party :- State of U.P.
Counsel for Applicant :- Pankaj Kumar Sharma
Counsel for Opposite Party :- G.A.
Hon’ble Rajeev Misra,J.
1. Heard Mr. Pankaj Kumar Sharma, the learned counsel for applicant and the learned A.G.A. for State.
2. This is a repeat application for bail filed by applicant-Rohit seeking his enlargement on bail in Case Crime No. 339 of 2022, under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act, Police Station-Gunnaur, District-Sambhal, during the pendency of trial, i.e. Session Trial No. 44 of 2023 (State Vs. Rohit) under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act now pending in the court of Additional District and Sessions Judge (Rape POCSO) ( Sambhal) Chandausi.
3. The first bail application of applicant was rejected by this Court by a detailed order dated 16.11.2023 passed in Criminal Misc. Bail Application No. 39891 of 2023 (Rohit Vs. State of U.P.). For ready reference, the same is reproduced hereinunder:-
“1. Heard Mr. Sarvajeet Singh, the learned counsel for applicant and the learned A.G.A. for State.
2. Perused the record.
3. This application for bail has been filed by applicant Rohit, seeking his enlargement on bail in Session Trial No.44 of 2023 (State Vs. Rohit Others), arising out of Case Crime No.339 of 2022, under Sections 498-A, 304-B I.P.C. Sections 3/4 D.P. Act, Police Station Gunaur, District Sambhal during the pendency of trial.
4. Record shows that in respect of an incident, which is alleged to have occurred on 24.09.2022, a delayed FIR dated 26.09.2022 was lodged by first informant, Rakesh Kumar (brother of the deceased) and was registered as Case Crime No.339 of 2022, under Sections 498-A, 304-B, 316 I.P.C. Sections 3/4 D.P. Act, Police Station Gunaur, District Sambhal. In the aforesaid FIR three persons namely; Rohit (applicant herein), Bhagwan Singh and Shrivati have been nominated as named accused.
5. It transpires from the record that marriage of applicant Rohit was solemnized with Rinki on 04.05.2022. However, just after expiry of a period of four months and twenty days from the date of marriage of the applicant an unfortunate incident occurred on 24.09.2022, in which the wife of the applicant died as she committed suicide by hanging herself.
6. Learned counsel for applicant submits that though applicant is husband of the deceased, a named as well as charge-sheeted accused, yet he is liable to be enlarged on bail. The deceased was a short-tempered lady and she has taken the extreme step for terminating her life through suicide by hanging herself. The bona-fide of the applicant is explicit from the fact that the autopsy surgeon, who conducted autopsy of the body of the deceased, did not find any other external ante-mortem injury on the body of the deceased, except the ligature mark. It is then urged by the learned counsel for applicant that the allegations made in the FIR with regard to demand of additional dowry to the tune of Rs.50,000/- cash and a bullet motorcycle are vague and bald, inasmuch as, the same are devoid of material particulars. As such, the same are liable to be ignored by this Court.
7. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in jail since 28.09.2022. As such, he has undergone more than one year and one month of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge-sheet has already been submitted against applicant and therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He, therefore, submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
8. Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is husband of the deceased, a named as well as charge-sheeted accused, therefore, he does not deserve any indulgence by this Court. The deceased was a young lady aged about nineteen years, who has died an unnatural death at her marital home just after expiry of a period of four months and twenty days from the date of her marriage. According to the learned A.G.A. since the death of the deceased has occurred within seven years of her marriage at her marital home, therefore, the same is a dowry death. Consequently the burden is upon the applicant to not only explain the manner of occurrence but also his innocence in terms of Sections 106 and 113-B Indian Evidence Act as applicant is husband of the deceased and an inmate of the house. However, applicant has miserably failed to discharge the said burden up to this stage. As such, no sympathy be shown by this Court in favour of applicant.
9. When confronted with above, the learned counsel for applicant could not overcome the same.
10. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as the complicity of applicant and accusation made coupled with the fact that the death of the deceased i.e. wife of the applicant though a suicidal death has occurred just after expiry of a period of four months and twenty days from the date of her marriage. According to the learned A.G.A. since the death of the deceased has occurred within seven years of her marriage at her marital home and the applicant, who is husband of the deceased having failed to explain the manner of occurrence as also his innocence, therefore, the burden in terms of Sections 106 and 113-B of the Evidence Act does not stand discharged. As such, irrespective of the varied submissions urged by the learned counsel for the applicant in support of the present application for bail but without making any comment on the merits of the case, this Court does not find any good or sufficient ground to allow this application for bail.
11. As a result, the application fails and is liable to be rejected.
12. It is accordingly rejected.”
4. Learned counsel for applicant contends that though applicant is husband of the deceased, a named and charge sheeted accused, yet he is liable to be enlarged on bail. He submits that after the completion of statutory investigation of concerned case crime number, the police report in terms of Section 173(2) Cr.P.C. was submitted on 29.10.2022. After submission of aforesaid charge sheet, cognizance was taken upon same, and the matter was committed to the Court of Sessions as offence complained of is exclusively triable of Sessions. Resultantly, Sessions Trial No. 44 of 2023 (State Vs. Rohit) under Sections 498A, 304B IPC and Section 3/4 Dowry Prohibition Act came to be registered and now said to be pending in the court of Additional District and Sessions Judge (Rape POCSO) (Sambhal) Chandausi. Upto this stage, two prosecution witnesses of fact namely PW-1 Ravindra (brother of the deceased) and PW2 Soran Singh (father of the deceased) have deposed before court below. However, they have not supported the F.I.R. It is next contended that in the opinion of autopsy surgeon, who conducted post mortem of the body of deceased, the cause of death of deceased was opined as Asphyxia as a result of ante-mortem hanging. The autopsy surgeon did not find any other external ante-mortem injury on the body of the deceased, except the ligature mark. The same speaks of the bona fide of the applicant. On the above premise, it is thus urged by the learned counsel for applicant that the nature of death of deceased is a suicidal death. In view of the nature of death of the deceased, the applicant is not liable to be awarded the maximum sentence under Section 304B IPC in case of conviction. Attention of the court was then invited to the F.I.R. and on basis thereof, it is thus urged that the allegations made in the F.I.R. with regard to demand of additional dowry to the tune of Rs. 50,000/- cash and a bullet motorcycle are only concocted but also false. Reference was made to the statement of the first informant which has been brought on record at page 33 of the paper book. With reference to above, the learned counsel for applicant submits that even in his statement under Section 161 Cr.P.C. no attempt has been made by the first informant to explain with regard to manner in which the alleged demand of dowry was made nor the manner in which cruelty was committed upon the deceased for non-fulfillment of additional demand of dowry. Drawing a parallel between the statement of the first informant under Section 161 Cr.P.C. and deposition before court below as PW2, he submits that once the first informant has himself not supported the F.I.R. in his deposition before court below as a prosecution witness, the allegations made in the F.I.R. are not worthy of reliance.
5. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 28.09.2022. As such, he has undergone more than one year and four months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he, therefore, contends that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.
6. Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since applicant is husband of the deceased, named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. The marriage of applicant with the deceased was solemnized on 04.05.2022 whereas, death of the deceased has occurred on 24.09.2022 i.e. even expiry of a period of one year from the date of marriage. As such, no indulgence be granted by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant as noted hereinabove.
7. Having heard, the learned counsel for applicant, the learned A.G.A. for State, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that first informant brother and father of the deceased who have deposed before court below as PW1 and PW2 respectively have not supported the F.I.R., as per the opinion of autopsy surgeon the nature of death of the deceased is suicidal inasmuch as the cause of death of deceased is Asphyxia as a result of ante-mortem hanging, the bona fide of applicant is further explicit from the fact that no external ante-mortem injury was found on the body of the deceased by the autopsy surgeon, in view of the nature of death of the deceased, the applicant is not liable to be awarded the maximum sentence under Section 304B IPC, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized yet inspite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), therefore, irrespective of the objections raised by the learned A.G.A. in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.
8. Accordingly, the bail application is allowed.
9. Let the applicant-Rohit, be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.
(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.
(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.
10. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 15.2.2024
Imtiyaz
