IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43 of 2010 UDAY PRATAP SINGH son of late Dharmu Singh, resident of village Samhuta, Police Station Rohtas, District Rohtas… ..Petitioner Versus THE STATE OF BIHAR… ..OPPOSITE PARTY For the Petitioner: Mr. Krishna Pd. Singh, Sr. Advocate For the State: Mr. Jitendra Kumar Singh, APP For the Informant: M/s Amresh Kumar and Ashok Kumar, Advocates. ----------- 9 01.04.2010 Heard learned counsel for the petitioner, the State and the informant. The petitioner is in custody and seeks bail in a case registered under sections 304(B) and 201/34 of the Indian Penal Code. A supplementary affidavit has been filed on behalf of the petitioner stating therein that the statement of the victim lady was recorded by the Additional City Magistrate II at Varanasi in Heritage Hospital, who is Executive Magistrate in the State of Uttar Pradesh. In the first information report, the allegation has been set up to the effect that the petitioner along with his family members had killed his wife and it is also alleged that there was demand of LCD TV, etc. and the victim lady was being tortured earlier also for such demand. 2 It had been submitted on behalf of the petitioner that the death is accidental, as the victim lady’s dress caught fire while she was trying to burn a candle and on the same day she was rushed to the hospital and the doctor informed the police and the statement of the victim was recorded by the police at Bose Clinic, Dehri-on-Sone. The same has been brought on record as annexure 3. Thereafter, due to the reason that the burn injury was very serious, the victim lady was taken to Varanasi and admitted in Heritage Hospital, where she was treated for about 19 days and on 30th July, 2009 she succumbed to the burn injuries. In support of his submission, the petitioner has appended the death certificate issued by the concerned Hospital. It had further been contended that after the death of the victim lady the police had prepared “Panchanama”, which contains the signatures of altogether five persons including one Anil Kumar Singh, brother-in-law of the informant, as well as Sourabh Kumar, the cousin brother of the deceased. Learned counsel for the petitioner drew attention of this Court towards the statement of one of the witnesses of the inquest report, namely, Surendra Pratap Singh, recorded by the police, who had stated that the 3 victim was being treated at the Hospital and succumbed to the burn injuries and family members of the informant were present at the time of treatment. It is also stated that the brother-in-law of the informant as well as the cousin brother of the victim had also signed the said ”Panchanama”. That apart, it is submitted that the statement of the informant, his brother and nephew, Sourabh Kumar (whose signatures are on inquest report) etc. had been recorded by the police during the course of investigation under section 161 of the Code of Criminal Procedure. They had accepted that they were present during the course of treatment of the victim lady and also that the receipt with regard to purchase of medicines contains signature of the brother of the deceased, namely, Pankaj Singh. Above all, it has been urged that the statement of the victim lady was also recorded in presence of the City Magistrate, which stands recorded in paragraph no. 21 of the supplementary case diary, wherein the victim lady had categorically stated that she had received injuries due to the accidental fire and nobody had tried to burn her. It stands noted below such written statement, since both the hands of the injured patients 4 were bandaged, therefore, impression of the right toe had been taken. The statement was recorded by the ACM, Varanasi has been recorded by the police and Dr. R.K. Pandey had also signed the same. Learned counsel submits that in view of the fact that the victim lady died subsequently and the statement made by herself before death is treated to be as dying declaration, the entire allegation falls flat. The petitioner is stated to be in custody since 05.08.2009. It is further contended that one of the co-accused, namely, Megh Nath Singh, the brother- in-law of the deceased, had been granted bail by a Bench of this Court vide order dated 21.11.2009 in Cr. Misc. No. 41438 of 2009 and one sister-in-law had been granted anticipatory bail by a Bench of this Court in Cr. Misc. No. 139 of 2009 vide order dated 08.03.2010. Learned counsel for the State submitted that it is a case under section 304B of the Indian Penal Code and the petitioner is the husband of the victim lady. However, he could not deny the fact that the victim lady’s statement had been recorded by the executive magistrate, which is apparent from paragraph no. 21 of the case diary. Learned counsel for the informant submitted 5 that since it is apparent that there was 85 % burn, thus, the circumstance under which such statement of the victim was recorded becomes doubtful. However, it is also stated that the police has wrongly stated that during the course of investigation some of the witnesses as also in paragraph 47 of the case diary had given such statement but he failed to show that any protest thereof has been made on behalf of the informant. Having regard to the facts and circumstances of the case in view of facts emanating from the materials collected during the course of the investigation, this Court would be inclined to grant bail to the petitioner. As a result, the petitioner, Uday Pratap Singh, is directed to be released on bail on furnishing bail bond of Rs. 10,000/-(ten thousand) with two sureties of the like amount each to the satisfaction of the Chief Judicial Magistrate, Rohtas at Sasaram in Rohtas Police Station Case No. 82/09. However, it is directed that the petitioner shall remain present on each and every date in course of trial before the court concerned. If the petitioner fails to appear on two consecutive dates in course of trial without any reasonable cause shown by him, the court concerned 6 would be at liberty to take steps for cancellation of his bail bonds. It is further made clear that the trial court concerned shall proceed with the trial and decide the same on its own merit in accordance with law without being prejudiced with any finding or observation made in this order. SC ( Dr. Ravi Ranjan, J.)