Allahabad High Court

Danish And Another vs State Of U.P. on 4 October, 2023

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2023:AHC:190732

Court No. - 65

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 39983 of 2023

Applicant :- Danish And Another

Opposite Party :- State of U.P.

Counsel for Applicant :- Pradeep Kumar Bhardwaj

Counsel for Opposite Party :- G.A.,Hemant Kumar,Pradeep Kumar Keshri

Hon'ble Rajeev Misra,J.

Heard Mr. Pradeep Kumar Bhardwaj, the learned counsel for applicants, the learned A.G.A. for State and Mr. Hemant Kumar, the learned counsel representing first informant.

This application for bail has been filed by applicants Danish and Islam seeking their enlargement on bail in Case Crime No.191 of 2023, under
Sections 498-A
,
304-B
IPC and
Section 3
/
Dowry Prohibition Act, police station Sikandrabad, district Bulandshahar, during the pendency of trial.

Perused the record.

Record shows that in respect of an incident which is alleged to have occurred on 28.03.2023, a delayed first information report dated 29.03.2023 was lodged by first informant, namely, Navi Hasan (brother of the deceased) and was registered as Case Crime No.0191 of 2023, under
Section 302
IPC, police station Sikandarabad, district Bulandshahar. In the aforesaid F.I.R., one person namely, Ikram (husband of the deceased) has been nominated as named accused, whereas two un-known persons have also been arraigned as accused.

The gravamen of the allegations made in the FIR is to the effect that the marriage of sister of first informant, namely, Saavra was solemnized with named accused Ikram three years prior to the occurrence. Subsequently, the brother-in-law of the first informant developed illicit relations with another lady. Ultimately, the brother-in-law of the first informant in connivance with other two not named accused caused death of sister of the first informant.

After aforesaid first information report was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII
CrPC
. However, it is pertinent to mention here that immediately after the occurrence had taken place, information regarding the same was given at the concerned police station by one Aslam Khan. On the said information, inqeust (Panchayatnama) of body of the deceased was conducted on 28.03.2023. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of deceased was characterized as homicidal and the cause of death of the deceased was said to be ante-mortem injury sustained by the deceased. Thereafter, the post mortem of body of the deceased was conducted. In the opinion of the autopsy surgeon, who conducted autopsy of body of the deceased, the cause of death of deceased was shock and hemorrhage as a result of ante-mortem injury. The Doctor, who conducted autopsy of body of the deceased, found following ante-mortem injuries on her body, which is explicit from the recital contained at page 39 of the paper book :-

"1. Lacerated wound 3 cm x 2 cm x scalp deep present at and Rt. Parietal region about 11.0 cm above from Rt ear.

2. Lacerated wound 6 cm x 4 cm x bone deep present at Lt occipital region, 8 cm behind from Lt ear.

3. Lacerated wound 3 cm x 2 cm x scalp deep present at occipital region, 2 cm above from injury no.2. On exploration of skull :- occipital bone from fracture. Brain & Brsic membrane found lacerated and about 100 ml blood present in cracial bridge.

4. Abrasion 2 cm x 1 cm present at dorsal aspect of Lt hand."

After aforesaid proceeding had been completed, the aforementioned FIR was lodged. During the course of investigation, Investigating Officer examined first informant and other relatives of the deceased, namely, Niyaz Mohammad (father); Ali Hasan (brother); Smt. Gudiya (sister-in-law) of the deceased under
Section 161
CrPC. The aforesaid witnesses so examined in their statements under
Section 161
CrPC have implicated present applicants also in the crime in question. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that the offence complained of is not one relating to murder but a dowry death. He, accordingly, submitted police report under
Section 173 (2)
CrPC i.e. charge-sheet dated 26.06.2023, whereby named accused Ikram (husband); and not named accused Danish (Devar), Islam (father-in-law) and Smt. Shabana (mother-in-law) of the deceased have been charge-sheeted under
Sections 498-A
,
304-B
IPC and
Section 3
/
Dowry Prohibition Act, police station Sikandrabad, district Bulandshahar.

At the very outset, the learned counsel for applicants submits that co-accused Smt. Shabana, mother-in-law of the deceased, has already been enlarged on bail by this Court vide order dated 18.08.2023 passed in Criminal Misc. Bail Application No.36133 of 2023 (
Smt. Shabana Vs. State of U.P.
). For ready reference, the same is reproduced herein-under :-

"1. List revised.

2. Heard Sri Pradeep Kumar Bhardwaj, learned counsel for the applicant, Sri Ram Prakash Shukla, learned A.G.A.-I for the State and perused the material on record.

3. This bail application under
Section 439
of Code of Criminal Procedure has been filed by the applicant Smt. Shabana, seeking enlargement on bail during trial in connection with Case Crime No. 191 of 2023, under
Sections 498-A
,
304B
IPC and
Section 3
/
D.P. Act, registered at P.S. Sikandrabad, District Bulandshahr.

4. The FIR of the matter was lodged on 29.03.2023 under
Section 302
IPC by Navi Hasan against Ikram and two unknown persons alleging therein that his sister Sabra was married around three years back to Ikram. Ikram was having illicit relationship with some woman which was opposed by his sister. On 28.03.2023 at about 05:30 pm he and his family members received an information that his sister Sabra has been murdered by Ikram and two other persons after which they reached the place and found his sister to be dead. The FIR has thus been lodged.

5. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present. It is argued that the applicant is the mother-in-law of the deceased. She is not named in the First Information Report. It is argued that initially the FIR was lodged under
Section 302
IPC but during investigation the same was converted into a case under
Sections 498-A
,
304B
IPC and
Section 3
/
D.P. Act. The name of the applicant has surfaced in the matter during investigation in which it has then come that there was a demand of Rs. 2 laksh as dowry from the deceased due to which she has been done to death. It is argued that the same is totally false and afterthought just in order to give the case a different colour. It is argued that the applicant is a lady and she is entitled to the benefit of
Section 437
Cr.P.C. It is argued that Ikram the husband of the deceased is in jail. It is argued that the applicant has no criminal history as stated in para 23 of the affidavit and is in jail since 22.06.2023.

6. Per contra, learned counsel for the State opposed the prayer for bail.

7. After having heard learned counsels for the parties and perusing the records, it is evident that the applicant is the mother-in-law of the deceased. She was not named in the First Information Report. The FIR was lodged under
Section 302
IPC against Ikram the husband of the deceased and two other unknown persons but during investigation the matter was converted from a case under
Section 302
IPC to
Sections 498-A
,
304B
IPC and
Section 3
/
D.P. Act. There is a recovery of a hammer recovered on the pointing out of Ikram the husband of the deceased. Ikram the husband of the deceased is in jail. The applicant is a lady.

8. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

9. Let the applicant Smt. Shabana, be released on bail in the aforesaid case crime number 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) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

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 shall file an undertaking to the effect that 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, in accordance with law, under section 174-A I.P.C.

(v) 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 her in accordance with law and the trial court may proceed against her under
Section 229-A
IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

10. 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.

11. The bail application is allowed."

It is next contended that applicant no.1 Danish is Dever and applicant no.2 Islam is father-in-law of the deceased. On the above premise, he contends that the case of present applicants is similar and identical to that of aforementioned charge-sheeted but bailed out co-accused who has already been enlarged on bail by this Court. Up to this stage, no such distinguishing feature has emerged on the basis of which the case of the present applicants could be so distinguished from aforementioned charge-sheeted co-accused so as to deny bail to applicants. It is thus urged that in view of above and for the facts and reasons recorded in bail order of co-accused
referred to above
, the applicants are also liable to be enlarged on bail on the ground of parity.

According to the learned counsel for applicants, applicants are innocent. Applicants are not named in the FIR. The complicity of the applicants in the crime in question has surfaced after expiry of a period of one and half months from the date of occurrence in the statements of the witnesses examined under
Section 161
CrPC, namely, Navi Hasan (brother/first informant); Niyaz Mohammad (father); Ali Hasan (brother); Smt. Gudiya (sister-in-law) of the deceased.

Referring to the judgements of the Supreme Court in
Manoj and Ors Vs State of Maharashtra
(1999) 4 SCC-268;
Subhash Kumar Vs. State of Uttarakhand
(2009) 6 SCC-641;
Amar Nath Jha Vs. Nand Kishore Singh and Ors
(2018) 9 SCC-137, the learned counsel for applicants contends that even though the FIR is not an encyclopedia of the prosecution case but it must disclose the basic prosecution case. On the above premise, he submits that absence of names of the applicants in the FIR clearly speaks of their bona fide. It is not the basic prosecution case that applicants are also involved in the crime in question. The husband of the deceased is already languishing in jail.

Even otherwise, the applicants are men of clean antecedents having no criminal history to their credit except the present one. The applicants are in jail since 22.06.2023. As such, they have undergone more than three months of incarceration. The police report under
Section 173 (2)
CrPC i.e. charge-sheet has already been submitted against the applicants, therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicants during the pendency of trial. It is thus contended that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the learned A.G.A. and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since the applicants are charge-sheeted accused therefore, they do not deserve any indulgence by this court. The case of charge-sheeted but bailed out co-accused namely, Smt. Shabana is different, inasmuch as, aforesaid co-accused being a lady was granted the benefit of proviso to
Section 437
CrPC. As such, no parity can be claimed by the present applicants from the aforementioned co-accused. The deceased was a young lady. The occurrence has taken place in her marital home just after expiry of approximately three years from the date of her marriage. As such, the same is highly un-natural. The occurrence has taken place within seven years of marriage of the deceased and that too in her matrimonial home. As such, the death of the deceased is a dowry death. By reason of above, the burden is upon the applicants not only to explain the manner of occurrence but also their innocence as per
Sections 106
and
113-B
of the Evidence Act. However, upto this stage, the applicants have miserably failed to discharge the said burden. They, therefore, contend that no sympathy be shown by this Court in favour of applicants. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicants with reference to the record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made coupled with the fact that the applicants are not named in the FIR, the applicants are charge-sheeted accused, the complicity of applicants in the crime in question has emerged in the statements of the witnesses examined under
Section 161
CrPC
referred to above
after one and half months of the occurrence, though FIR is not an encyclopedia of the prosecution case but it must disclose the basic prosecution case, the absence of name of the applicants in the FIR clearly speaks of their bona fide and their implication in the crime in question appears to be on account of an after thought, general role has been assigned to all the accused, the allegations made in the FIR with regard to alleged demand of dowry are vague and bald being devoid of material particulars therefore, in view of law
laid down by
Apex Court in
Kahkashan Kausar @ Sonam & others Vs. State of Bihar
(2022) 6 SCC 599 the same are prima facie liable to be ignored at this stage, the clean antecedents of the applicants, the period of incarceration undergone, in spite of the fact that the charge-sheet has been submitted against applicants and therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystalized, yet the learned A.G.A. nor the learned counsel for first informant could point out any such incriminating circumstance from the record necessitating the custodial arrest of the applicants during the pendency of trial, the judgement of Supreme Court in
Sumit Subhashchandra Gangwal and Another Vs. State of Maharashtra and Another
2023 LiveLaw (SC) 373 (paragraph 5), therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the present application for bail but, without making any comments on the merit of the case, the applicants have made out a case for bail.

Accordingly, the bail application is allowed.

Let the applicants Danish and Islam, involved in aforesaid case crime number, be released on bail on their furnishing personal bond with 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under section 229-A I.P.C.

(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under section 174-A I.P.C.

(iv) The applicants 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 applicants 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 them 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 applicants.

However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their 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 :- 4.10.2023.

Rks.