Allahabad High Court

Suraj Yadav vs State Of U.P. on 11 November, 2022

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 69

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19524 of 2022

Applicant :- Suraj Yadav

Opposite Party :- State of U.P.

Counsel for Applicant :- Anil Kumar Singh

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Anil Kumar Singh, the learned counsel for applicant and the learned A.G.A. for State.

2. Perused the record.

3.
Instant bail application has been filed by applicant-Suraj Yadav seeking his enlargement on bail in of Case Crime No. 54 of 2021 under
Sections 498A
,
304B
I.P.C. and 3/4
Dowry Prohibition Act
, Police Station- Devgaon, District-Azamgarh, during the pendency of Sessions Trial No. 217 of 2021 (
State Vs. Sabhabati Devi and others
).

4. Record shows that marriage of applicant was solemnized with Dimpal Yadav (daughter of first informant) on 20.05.2019 in accordance with Hindu Rites and Customs. However, just after expiry of a period of two years from the date of marriage of applicant, an unfortunate incident occurred on 01.04.2021 in which, wife of applicant died as she committed suicide by hanging herself. Information recording aforesaid occurrence at the concerned police station was not given by applicant or any of his family members but by brother of deceased namely Subedar Yadav. On the basis of above, Inquest (Panchayatnama) of the body of deceased was conducted on the next date i.e. 04.01.2021. In the opinion of panch witnesses, nature of death of deceased was characterised as suicidal. At this juncture, the first informant-Subedar Yadav, brother of deceased lodged a delayed F.I.R. dated 02.04.2021, which was registered as Case Crime No. 54 of 2021 under
Sections 498A
,
304B
I.P.C. and 3/4
Dowry Prohibition Act
, Police Station- Devgaon, District-Azamgarh. In the aforesaid F.I.R., four persons, namely, Suraj Yadav (hasband), Shivnath Yadav (father-in-law), Subhabta Devi (mother-in-law) and Pika Yadav (Nanad) of the deceased were nominated as named accused.

5. In brief, according to the prosecution story as unfolded in the F.I.R., it is alleged that marriage of sister of first informant was solemnized with son of applicant on 20.05.2022. Sufficient amount of goods and dowry were given at the time of marriage of sister of first informant. However, in-law of first informant i.e. named accused persons were dissatisfied with same. Accordingly, they demanded additional dowry by way of motorcycle. As aforesaid demand of additional dowry was not fulfilled, therefore, physical and mental cruelty were caused upon the sister of first informant. On account of non-fulfilment of additional demand of dowry, daughter of first informant was put to death on 10.10.2021.

6. Subsequent of aforesaid F.I.R. dated 02.04.2021, post-mortem of the body of deceased was conducted on 03.04.2021. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on her body:

"Ligature of size 24cm. x 3 cm aroundthe neck, 3 cm below to left ear lobule and 7 cm below the Right ear lobule, below chin, above thyroid. Ligatue mark oblique base groove, brownish and parchment like. On cut subcutaneous tissue hand glistening. "

7. Except for the ligature mark, no internal or external ante-mortem injury was found on the body of deceased. In the opinion of Autopsy Surgeon cause of death of deceased was asphyxia as a result of ante-mortem hanging.

8. Subsequently, on the basis of above and other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of some of the named accused is established in the crime in question. He, therefore, opined to submit a charge sheet. Accordingly he submitted the charge sheet dated 26.06.2021 whereby three of the named accused i.e. Suraj Yadav (hasband), Shivnath Yadav (father-in-law), Subhabta Devi (mother-in-law) of deceased have been charge sheeted under
Section 498A
,
304B
I.P.C. and 3/4
Dowry Prohibition Act
whereas the Nanad of deceased namely Pinka Yadav has been exculpated.

9. At the very outset, learned counsel for applicant submits that co-accused Shivnath Yadav (father-in-law), Subhabta Devi (mother-in-law) of deceased have already been enlarged on bail by this Court vide orders dated 28.08.2021 and 15.09.2021. For ready reference, same are reproduced herein-under:

I. Bail order of co-accused Shivnath (father-in-law):

"Heard learned counsel for the applicant, learned A.G.A. for the State and perused the entire record.

The present bail application has been filed by the applicant in Case Crime No. 54 of 2021 under
Sections 498-A
,
304-B
IPC and
Sections 3
/
of the D.P. Act, Police Station - Devgaon, District - Azamgarh with the prayer to enlarge the applicant on bail.

The report of this incident was lodged by complainant Sri Subedar Yadav against the in-laws of his sister (deceased) and it was alleged that after solemnisation of the marriage the complainant's sister was being tortured by her husband Suraj Yadav, father-in-law Shivnath Yadav (applicant), mother-in-law Subhwata and Nanad Pinka Yadav for a motorcycle. All this was told by the complainant's sister when she came back to the complainant's home and on phone also she used to narrate the same thing. Thereafter, in the night of 1.4.2020 she was found hanging with fan in the closed room. The matter was reported to the police on 2.4.2021.

The contention as raised at the Bar by learned counsel for the applicant is that applicant-accused is quite innocent and has been falsely implicated in the present case. It is submitted that the present accused applicant is father-in-law of the deceased and is an aged old person suffering from age related ailments. It is Further submitted that general allegations of demand of dowry have been levelled against all the accused. No specific allegation of demand of dowry has been levelled upon the present accused. It is also argued that the deceased committed suicide by hanging. Lastly, it is argued that the applicant is in jail since 03.04.2021 and that in case applicant is enlarged on bail, he will not misuse the liberty of bail.

Learned A.G.A. has opposed the prayer for bail. But he accepts the bail parity of the present applicant with co-accused.

Keeping in view the submission of learned counsel for the parties, period of detention of the applicant and all the attending facts and circumstances of the case, without expressing any opinion on the merits of the case, at this stage, prima facie, a case for bail has been made out.

The prayer for bail is granted. The application is allowed.

Let applicant Shivnath Yadav involved in the aforesaid crime be released on bail on furnishing a personal bond and two local sureties to the satisfaction of court concerned subject to the following conditions:-

(1). The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence and 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;

(2). The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under
Section 229-A
of the Indian Penal Code;

(3). In case, the applicant misuses the liberty of bail and in order to secure his presence proclamation under
Section 82
Cr.P.C. is issued and the applicant fails to appear before the Court on the date fixed in such proclamation, then, the trial court may initiate proceedings against him, in accordance with law, under
Section 174-A
of the Indian Penal Code.

(4). The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under
Section 313
Cr.P.C. If in the opinion of the trial court default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the learned counsel for the applicant alongwith a self attested identity proof of the said persons (preferably Aadhar Card) mentioning the mobile number (s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official.

The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.

Order Date :- 25.8.2021 "

II. Bail order of co-accused Subhawati (Mother-in-law):

"Heard learned counsel for the applicant, learned A.G.A for the State and perused the record.

It has been argued by learned counsel for the applicant that applicant is mother-in-law of deceased and that she has not committed any offence. The marriage of deceased with son of applicant has taken place about two years prior to the incident. The allegations regarding dowry demand and harassment of deceased, are false and baseless. As per postmortem report, cause of death has been shown asphyxia as a result of ante-mortem hanging and except that there was no injury on the body of deceased. It was submitted that only general allegations of dowry demand and harassment have been made and that no specific role has been attributed to the applicant. It has been further submitted that applicant along with her husband was residing separately from the deceased and her husband. Learned counsel further submitted that similarly placed co-accused Shiv Nath Yadav, who is father-in-law of deceased, has already been granted bail by co-ordinate Bench of this Court vide order dated 25.08.2021, passed in Criminal Misc. Bail Application No. 31509 of 2021. It has been further submitted that the applicant is languishing in jail since 03.04.2021, having no criminal history and that in case the applicant is released on bail, she will not misuse the liberty of bail and will cooperate in trial.

Learned A.G.A. has opposed the prayer for bail, however, it has not been disputed that similarly placed co-accused has already been granted bail.

Considering the entire facts and circumstances of the case, submissions of learned counsel for the parties, nature of evidence and all attending facts and circumstances of the case, without expressing any opinion on merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

Let the applicant Subhawati Devi involved in Case Crime No. 54 of 2021, under
Sections 498-A
,
304-B
IPC and 3/4
D.P. Act
, P.S. Devgaon, District Azamgarh, be released on bail on furnishing each a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions:

1. The applicant shall not tamper with the evidence during the trial.

2.The applicant shall not pressurize/ intimidate the prosecution witness.

3.The applicant shall appear before the trial court on the date fixed, unless personal presence is exempted.

4. The applicant shall not commit an offence similar to the offence of which she is accused, or suspected, of the commission of which she is suspected.

5.The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade them from disclosing such facts to the Court or to any police officer or tamper with the evidence.

In case of breach of any of the above condition, the Court below shall be at liberty to cancel bail of applicant in accordance with law.

Order Date :- 15.9.2021 "

10. On the basis of above, learned counsel for applicant submits that criminality alleged against applicant and aforementioned co-accused is common. As such, same cannot be separated or segregated. It is then contended that since there is no distinguishing feature to distinguish the case of present applicant with aforementioned co-accused, therefore, in view of the facts and reasons recorded in the aforesaid bail orders of co-accused, applicant, who is husband of deceased, is also liable to be enlarged on bail by this Court on the ground of parity. It is further contended that though the applicant is husband of decease and a named as well as charge-sheeted accused but he is innocent. Allegations made in the F.I.R. are with regard to demand of additional dowry are false and concocted. Same are devoid of material particulars. Statements of first informant and other witnesses as recorded under
Section 161
Cr.P.C. do not give the material particulars regarding the same. According to the learned counsel for applicant, deceased was a short tempered lady and she took the extreme step of committing suicide by hanging herself. He has then referred to the post-mortem report of the body of deceased and on basis thereof, he contends that bonafide of applicant is also explicit from the fact that except for the ligature mark, no other external or internal ante-mortem injury was found on the body of deceased. There is no evidence on record upto this stage to show abatement on the part of applicant in the commission of alleged crime. Applicant is a man of clean antecedents and has no criminal history to his credit except the present one. Applicant is in custody since 03.04.2021. As such, he has undergone more than one year and seven months of incarceration. In case the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during course of trial. On the cumulative strength of above, he submits that applicant is liable to be enlarged on bail

11. Per contra, the learned A.G.A. has opposed the present application for bail. Learned A.G.A. submits that since the applicant is husband of deceased and death of deceased has occurred within a period of seven years from the date of her marriage, the death of deceased is a dowry death. As such, applicant does not deserve any indulgency by this Court. Placing reliance upon the provisions contained in
Section 113B
and
of Evidence Act, learned A.G.A. contends that there is a statutory presumption against applicant that death of deceased is a dowry death and burden is also upon applicant explain the manner of occurrence as the same has occurred in the house of applicant. Up to this stage, applicant has failed to dislodge the aforesaid burden and further to discharge his burden. Therefore, no sympathy be granted by this Court in favour of applicant. However, he could not dispute the legal and factual submissions urged by learned counsel for applicant.

11. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that similarly situate co-accused have been enlarged on bail, criminality alleged against co-accused are common and therfore, incapable of being separated or segregated, the absence of any external or internal ante-mortem injury on the body of deceased and the period of incarceration undergone by applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

12. Accordingly, present application for bail is allowed.

13. Let the applicant-Suraj Yadav involved in aforesaid case crime number be released on bail on 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) Applicant will not tamper with prosecution evidence.

(ii) 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) Applicant will not indulge in any unlawful activities.

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

14. 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 of applicant and send him to prison

Order Date :- 11.11.2022

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