Allahabad High Court

Omkar vs State Of U.P. on 8 January, 2024

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:3296

Court No. - 5

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46917 of 2023

Applicant :- Omkar

Opposite Party :- State of U.P.

Counsel for Applicant :- Rama Shankar Mishra,Radhey Shyam Tripathi

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Rama Shankar Mishra, the learned counsel for applicant and the learned A.G.A. for State.

Perused the record.

This repeat application for bail has been filed by applicant Omkar, seeking his enlargement on bail in Case Crime No. 81 of 2023, under
Sections 498A
,
304B
,
,
,
,
IPC, and 3/4
D.P. Act
, Police Station- Asmoli, District Sambhal, during the pendency of trial.

The first bail application of applicant was rejected for want of prosecution vide order dated 4.10.2023, passed by Criminal Misc. Bail Application No. 26172 of 2023 (
Omkar Vs. State of U.P.
). For ready reference, the same is reproduced herein under:

"1. Case called out in revised list. No one appears on behalf of applicant to press this application for bail.

2. As no one appears on behalf of learned counsel for applicant to press this application, it is accordingly dismissed for want of prosecution. "

Record shows that Marriage of Rohit son of applicant was solemnized with Sundri on 6.3.2022. However, just after expiry of period of one year and month from the date of marriage of son of applicant, an unfortunate incident occurred on 13.3.2023, in which the daughter in law of applicant sustained burn injuries. Ultimately, the victim i.e. the daughter-in-law of the applicant succumbed to the burn injuries sustained by her on 17.3.2023.

Prior to her death, the victim had herself lodged an F.I.R. dated 13.3.2023, which was registered as Case Crime No. 81 of 2023, under
Sections 498A
,
304B
,
,
,
,
IPC, and 3/4
D.P. Act
, Police Station- Asmoli, District Sambhal. In the aforesaid F.I.R. four persons namely, Rohit, Rahul, Omkar, and mother-in-law have been nominated as named accused.

After aforesaid F.I.R was lodged. Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII
Cr.P.C
. The statement of the victim was recorded under
section 164
Cr.P.C. The victim in her aforesaid statement has clearly implicated the four named accused for immolating her. Subsequent to above, the victim died. Thereafter the post mortem of the body of deceased was conducted. The autopsy surgeon who conducted the autopsy of the body of the deceased, opined that cause of death of deceased was Septic Shock due to flame burn followed by septicemia.

During course of investigation, Investigating Officer examined other witnesses under
section 161
Cr.P.C. Witnesses so examined have supported the F.I.R. On the basis of above and other material collected by Investigating Officer, during course of investigation he came to the conclusion that complicity of applicant and other named accused is established in the crime in question. He, accordingly submitted the charge sheet dated 13.4.2023, whereby all the named accused have been charge sheeted under sections under
Sections 498A
,
304B
,
,
,
,
IPC, and 3/4
D.P. Act
.

Learned counsel for applicant submits that mother-in-law of the deceased i.e. wife of applicant has already been enlarged on bail by this Court vide order dated 21.9.2023, passed in Criminal Misc. Bail Application No. 26186 of 2023 (
Smt. Jaiwati Vs. State of U.P
). For ready reference, the same is reproduced herein under:

"1. List revised.

2. Heard Sri Rama Shankar Mishra, learned counsel for the applicant and Sri Triveni Sharan Rai, learned counsel 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. Jaiwati, seeking enlargement on bail during trial in connection with Case Crime No. 81 of 2023, under
sections 498-A
,
304B
,
,
,
,
I.P.C. and 3/4
D.P. Act
, Police Station Asmoli, District Sambhal.

4. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is the mother-in-law of the deceased. The marriage of the victim Sundari with son of the applicant (Smt. Jaiwati) was solemnized one year back. The applicant was living separately from the victim and her husband. It is argued that general and omnibus allegations have been made in the FIR against the applicant and her family members. The story regarding demand of dowry has seen the light of the day for the first time when the FIR has been lodged. The husband of the victim is in jail. It is argued that the applicant is a lady and is entitled to the benefit of
Section 437
Cr.P.C. It has also been pointed out that the applicant is not having any criminal history as stated in para 20 of the affidavit and is in jail since 04.04.2023.

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

6. 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 victim. The husband of the victim is in jail.

7. 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.

8. Let the applicant- Naina Devi, 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.

9. 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.

10. The bail application is allowed. "

On the above premise, it is contended that since applicant is father-in-law of the deceased, therefore he is also liable to be enlarged on bail on the ground of parity.

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 4.4.2023. As such, he has undergone more than six months of incarceration. The police report in terms of
Section 173 (2)
Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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.

Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is the father in law of deceased a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. He submits that the victim, daughter-in-law of applicant, sustained burn injuries at her marital home just after expiry of period of one year and one month. Since the applicant is the father-in-law of deceased and inmate of the house, therefore, by virtue of
Section 106
and
of Evidence Act, the burden is upon the applicant to not only explain the manner of occurrence but also his innocence. However, the said burden has not been dislodged. No parity can be claimed by applicant from the co-accused i.e. the mother in law of deceased as she is entitled to the benefit of the provisions contained in proviso to
Section 437
Cr.P.C. The deceased was young lady, aged about 23 years who has died in unnatural circumstances. As such, no sympathy be shown by this court in favour of applicant.

When confronted with above, the learned counsel for applicant could not overcome the same.

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 complicity of applicant, accusation made coupled with the fact that objections raised by the learned A.G.A. in opposition to the present application bail could not be dislodged by learned counsel for applicant, therefore irrespective of the varied submissions urged by learned counsel for 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 ground to enlarge the applicant on bail.

In view of above, the application fails and is liable to be rejected.

It is accordingly rejected.

Order Date :- 8.1.2024

Arshad