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Sunil Kumar vs State Of U.P. on 26 November, 2018

HIGH COURT OF JUDICATURE AT ALLAHABAD

?A.F.R.

Court No. – 48

Case :- CRIMINAL APPEAL No. – 815 of 2012

Appellant :- Sunil Kumar

Respondent :- State Of U.P.

Counsel for Appellant :- Shyam Sunder Mishra,Vikas Singh

Counsel for Respondent :- Govt. Advocate

Hon’ble Karuna Nand Bajpayee,J.

Hon’ble Ajit Singh,J.

Ref:- Criminal Misc. Bail Application No. 66765 of 2012.

Heard learned counsel for the applicant-appellant and learned A.G.A. for the State.

Perused the record.

Submission of learned counsel for the applicant-appellant is that though there is dying declaration said to have been given by the deceased implicating the appellant  in the case but there are overwhelming circumstances which create strong doubt against the genuineness of the same and the totality of the evidence and circumstances available in the case are such that make out a prima facie case for bail in favour of the appellant. Further submission is that the truthfulness of the dying declaration stands severely compromised in the light of the complete denial by the witnesses regarding all the allegations made against the appellant. It has been pointed out that though the incident is said to have taken place on 3.2.2009 but the FIR was lodged against the appellant on the basis of an application  under Section 156(3) Cr.P.C. which was moved on 18.3.2009. The case against the appellant was registered in the police station on 2.4.2009. Submission is that this unconvincingly explained enormous delay in lodging the FIR by itself is a strong circumstance which creates doubt about the complicity of the appellant in the crime and is a strong pointer to indicate that at the initial period there was hardly anything available with the parents’ side to speak against the appellant and his innocence was a known fact even to them. Further submission is that even during the course of the trial when P.W.1 Jagdish, who is the father of the deceased was examined,  he deposed in the court that the appellant never demanded any dowry and he has not been  guilty of committing any cruelty upon the deceased for the reason of its non-fulfilment. In fact, apart from him P.W.2  Om Prakash, who is the uncle of the deceased has also completely exonerated the appellant and gave complete denial to the allegations of demand of dowry and the cruelty alleged to have been committed against the deceased by the appellant. Similarly, P.W. 3, Smt. Sumitra, who is the mother of the deceased also deposed on the same lines and nothing was spoken against the appellant even by her. Submission is that actually the deceased caught fire accidentally while cooking food. It was also submitted that the deceased is said to have incurred hundred percent burns and she was not in a position to give any statement which was, according to the counsel, recorded under the pressure of the police falsely. The Doctor, who is said to have given fitness certificate to the deceased, has also not been examined by the prosecution to give correct version of the actual state of affairs pertaining to the dying declaration and his writing was got proved by somebody else and who apart from proving the hand writings of the Doctor was not in a position to depose about the circumstances which transpired at the time of recording of the dying declaration.  Much emphasis was also laid by the learned counsel for the appellant about the period of detention already undergone by appellant and it has been pointed out that he is in jail since 23.7.2009 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early hearing of appeal. Several other submissions in order to demonstrate the falsity of the allegations made against the appellant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the appellant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required. 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. has opposed the prayer for bail.

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 long period of nine years detention already undergone, the unlikelihood of early hearing and conclusion of appeal, this Court is of the view that the appellant may be enlarged on bail.

Let the appellant- Sunil Kumar, convicted and sentenced in S.T. No. 404 of 2009, State of U.P. Versus Sunil Kumar and others, arising out of case crime no. 115 of 2009, under Sections 498A and 302 IPC, P.S.- Hathgaon, District- Fatehpur be released on bail on his 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.

It may be clarified that the observations, if any, made in this order must not be construed to have any reflection upon the ultimate merits of the case and they are confined only for the purposes of deciding the present bail application.

Order on Appeal.

The appeal may be listed for hearing in due course after preparation of the paper book.

Order Date :- 26.11.2018

CPP/-

 

 

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