Allahabad High Court

Bhan Singh vs State Of U.P. on 13 November, 2024

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:178015

Court No. - 72

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41704 of 2024

Applicant :- Bhan Singh

Opposite Party :- State of U.P.

Counsel for Applicant :- Sarvendra Dwivedi,Vikram Kumar

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

1. Heard Mr. Rajendra Prasad Shukla Advocate holding brief of Mr. Sarvendra Dwivedi, the learned counsel for applicant and the learned A.G.A. for State-opposite party-1.

2. Perused the record.

3. This application for bail has been filed by applicant-Bhan Singh seeking his enlargement on bail in Sessions Trial No. 84of 2023 under
Section 498A
,
304B
I.P.C. and Sections 3/4 D. P. Act, Police Station-Bakevar, District-.Fatehpur during the pendency of trial.

4. Learned counsel for applicant submits that co-accused Smt. Gayawati (mother-in-law of the deceased) has already been enlarged on bail by this Court by a detailed order dated07.08.2023 passed in Criminal Misc. Bail Application No. 34512 of 2023 (
Smt. Gayawati Vs. State of U.P.
). Subsequently, co-accused Shiv Darshan (father-in-law of the deceased) has also been enlarged on bail by this Court by a detailed order dated 08.05.2024 passed in Criminal Misc.

Bail Application No. 35954 of 2023 (
Shiv Darshan Vs. State of U.P
.) For ready reference, the order dated 08.05.2024 is reproduced herein under:

"Heard Mr. Sabhajeet Nishad, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Hari Nath Chaubey, the learned counsel representing first informant.

Perused the record.

This bail application has been filed by the applicant Shiv Darshan, seeking his enlargement on bail in Case Crime No. 0084 of 2023, under
Section 498-A
,
304-B
IPC and
Sections 3
/
Dowry Prohibition Act, P.S. Bakewar, District Fatehpur during the pendency of the trial.

At the very outset, the learned counsel for applicant contends that applicant is the father-in-law of the deceased. The mother-in-law of the deceased has already been enlarged on bail by this Court by a detailed order dated 7.8.2023 passed in Criminal Misc. Bail Application No 34512 of 2023 (
Smt. Gayawati Vs. State of U.P.
). For ready reference, the same is extracted herein under:-

"1. Heard Mr. Sabhajeet,Nishad Ramjanki, the learned counsel for applicant, the learned A.G.A. for State and Mr. Hari Nath Chaubey, the learned counsel representing first informant/opposite party-2.

2. Perused the record.

3. Instant application for bail has been filed by applicant-Smt. Gayawati seeking her enlargement on bail in Case Crime No. 0084 of 2023 under
Sections 498A
,
304B
I.P.C. and Section 3/4 D. P. Act, Police Station-Bakewar, District-Fatehpur, during the pendency of trial.

4. Record shows that in respect of an incident, which is alleged to have occurred on 14.04.2023, a delayed F.I.R. dated 24.04.2023 was lodged by first informant Prema Beba (mother of the deceased) and was registered as Case Crime No. 0084 of 2023 under
Sections 498A
,
304B
I.P.C. and Section 3/4 D. P. Act, Police Station-Bakewar, District-Fatehpur,. In the aforesaid F.I.R., five persons namely Bhan Singh, Shiv Darshan, Gyawati (applicant herein), Kiran and Santram have been nominated as named accused.

5. Learned counsel for applicant contends that though the applicant is mother-in-law of the deceased, a named and charged sheeted accused inasmuch as charge sheet has been submitted on 14.07.2023, yet she is liable to be enlarged on bail. Attention of the Court was then invited to the provisions contained in proviso to
Section 437
Cr.P.C. and on basis thereof, it is thus urged that by virtue of above, the applicant being a woman is liable to be enlarged on bail. According to the learned counsel for applicant, in the F.I.R. it has been alleged that additional demand of dowry to the tune to Rs. 2 Lakhs and a Motorcycle were made. However, the allegations so made in the F.I.R. is vague and bald as the same is devoid of material particulars. The same has not been explained/detailed in the F.I.R nor in the statement of first informant as recorded under
Section 161
Cr.P.C. Referring to the judement of the Supreme Court in
Kahkashan Kausar @ Sonam and others Vs. State of Bihar and Others
, (2022) 6SCC 599, he submits that the said allegations are therefore liable to be ignored by this Court at this stage. Applicant is the mother-in-law of deceased. Therefore, she cannot be said to be the beneficiary of the additional demand of dowry. The husband of the deceased is already languishing in jail. The deceased was a short tempered lady and she has taken the extreme step of terminating her life by committing suicide. Bonafide of the applicant is also explicit from the fact that as per opinion of Autopsy Surgeon the death of the deceased is homicidal death inasmuch as the cause of death of deceased is asphyxia as a result of ante-mortem hanging. The ante-mortem injuries found on the body of the deceased are by themselves not sufficient to cause death of the deceased. Moreover the said injuries can not be said to be grievous or fatal. Even otherwise, applicant is a lady and in custody since 30.05.2023. As such, she has undergone more than two months of incarceration. Applicant is a lady of clean antecedents inasmuch as she has no criminal history to her credit except the present one. The police report (charge-sheet) in terms of
Section 173 (2)
Cr.P.C. has already been submitted. As such the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He therefore contends that applicant is liable to be enlarged on bail. In case the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.

6. Per contra, the learned A.G.A. and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since the applicant is a named as well as charge sheeted accused therefore she does deserve any indulgence by this Court. Attention of the Court was also invited to the post mortem report and on the basis thereof it is thus urged that autopsy surgeon who conducted autopsy of the body of deceased found as many as six ante mortem injuries on the body of the deceased. However no explanation regarding the same has come forward from the applicant The deceased was a young lady aged about 22 years who has died in suspicious circumstance. Occurrence has taken place in the house of applicant and within seven years of the marriage of the deceased, therefore, the burden is upon the applicant to explain the manner of occurrence as well as his innocence in terms of Section 106 and
Section 113B
of Evidence Act. However, applicant has miserably failed to discharge the said burden upto this stage. They therefore submit that applicant does not deserve any sympathy of this Court. However, they could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.

7. Having heard the learned counsel for applicant, the learned A.G.A. for State and upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that applicant is the mother-in-law of the deceased, since applicant is a lady therefore she is entitled to the benefit of the provisions contained in proviso to
Section 437
Cr.P.C., police report (charge-sheet) under
Section 173 (2)
Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, however, the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the course of trial, the judgement of Apex Court in
Sumit Subhashchandra Gangwal Vs. State of Maharashtra
, 2023 LiveLaw (SC) 373 (Paragraph 5), as per opinion of Autopsy Surgion, the death of deceased is a suicidal death as the cause of death of deceased is asphyxia as a result of ante-mortem hanging, applicant cannot be said to be the beneficialry of additional demand of dowry, the allegations made in the F.I.R. regarding additional demand of dowry are vague and bald allegations as the same are devoid of material particulars, the judgement of the Supreme Court in
Kahkashan Kausar @ Sonam and others
(supra), the period of incarceration undergone by applicant and the clean antecedents of applicant but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

8. Accordingly, present application for bail is allowed.

9. Let the applicant-Smt. Gayawati involved in aforesaid case crime number be released on bail on her 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.

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 of applicant and send her to prison"

With reference to above, the learned counsel for applicant contends that the case of the present applicant is similar and identical to co-accused Smt. Gayawati. There is no such distinguishing feature on the basis of which the case of the present applicant could be so distinguished from aforementioned bailed out co-accused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons recorded in the bail order of co-accused Smt. Gayawati, the present applicant is also liable to be enlarged on bail on the ground of parity.

According to the learned counsel for applicant as per the arrest memo of the applicant, which is part of the case diary relied upon by the learned A.G.A., the age of the applicant is shown as 62 years. The applicant is in jail since 30.5.2023. As such, applicant is running age of 64 years. On the above premise, it is thus urged by the learned counsel for applicant that since the applicant is an old man, therefore, by virtue of the provisions contained in proviso to Section 437 Cr. P. C., the applicant is also liable to be enlarged on bail.

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 30.05.2023. As such, he has undergone almost 1 year of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

Per contra, the leaned A.G.A. and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since the applicant is the father-in-law of the deceased a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Furthermore, the death of the deceased is a dowry death, which has occurred in the house of the applicant himself. Therefore, in view of above, the burden is upon the applicant himself to explain not only the manner of occurrence but also his evidence in terms of
Sections 107
and
113 B
of the Evidence Act. However, the applicant has failed to discharge the said burden upto this stage. The deceased was a young girl aged about 22 years and she has died just after expiry of a period of one month and 11 days from the date of her marriage at her matrimonial home. On the above conspectus, they, therefore, contend that no indulgence be granted by this Court in favour of applicant.

Having heard the learned counsel for applicant, the learned A.G.A. for state, learned counsel for first informant, upon perusal of material brought on record, nature of offence, evidence, complicity of the accused, accusation made and coupled with the fact that the co-accused Smt. Gayawati, mother-in-law of the decreased has already been enlarged on bail by this Court, applicant is the father-in-law of the deceased, prima facie the case of the present applicant is similar and identical to bailed out co-accused Smt. Gayawati, the learned A.G.A. and the learned counsel representing first informant could not point out any such distinguishing feature, on the basis of which the case of present applicant could be so distinguished from bailed out co-accused so as to deny him bail, the police report in terms of 173 (2) Cr. P. C. has already been submitted, therefore, entire evidence sought to be relied by the prosecution stands crystallized, yet in spite of above the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of the applicant during the pendency of trial, judgement of the Supreme Court in
S. Subhash Gangwar Vs. State of Maharashtra
, 2023 SCC OnLine SC 343, the period of incarceration undergone, the clean antecedents of the applicant. since the applicant is having running age of 64 years, as such he is an old person and therefore entitled to the benefit of proviso to Section 437 Cr. P. C., therefore, irrespective of the objections raised by the learned A.G.A. and the learned counsel representing first informant but without making any comments on the merits of the case, the applicant has made out a case for bail.

Accordingly, the bail application is allowed.

Let the applicant Shiv Darshan involved in aforesaid case crime number, be released on bail on his furnishing a 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 applicant shall file an undertaking to the effect that he 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 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
I.P.C..

(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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 him, in accordance with law, under
section 174-A
I.P.C.

(iv) 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 him 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 applicant.

However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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 :- 8.5.2024 "

5. On the above premise, the learned counsel for applicant submits that except for the fact that applicant is husband of the deceased, there is no such other distinguishing feature on the basis of which the case of present applicant could be so distinguished from aforementioned bailed out co-accused so as to deny him bail. He therefore submits that in view of above and for the facts and reasons recorded in the bail orders of aforementioned bailed out co-accused, applicant is also liable to be enlarged on bail on the ground of parity.

6. Even otherwise, applicant is a man of clean antecedents having no criminal history to his credit except the present one. Applicant is in custody since 07.05.2023. As such, he has undergone more than one year and six months of incarceration. The police report (charge-sheet) in terms of
Section 173 (2)
Cr.P.C. has already been submitted against applicant, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallised. However, upto this stage, no such incriminating circumstance has emerged on record necessitating the custodial arrest of applicant during the pendency of trial. On the cumulative strength of above, he thus submits 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.

7. Per contra, the learned A.G.A. for State has vehemently opposed the present application for bail. He submits that since applicant is the husband of deceased, a named and charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Marriage of the deceased was solemnized with applicant on 05.03.2023 whereas occurrence giving rise to present criminal proceedings has occurred on 14.04.2023 i.e. just after expiry of a period of 40 days approximately. On the above premise, the learned A.G.A. submits that death of the deceased, who was a young lady aged about 22 years, is unnatural and in suspicious circumstance. Occurrence has taken place in the house of applicant and within seven years of the marriage of the deceased, therefore, the burden is upon the applicant himself to explain the manner of occurrence as well as his innocence in terms of
Section 106
and
Section 113B
of Evidence Act. However, applicant has miserably failed to discharge the said burden upto this stage. He therefore submits that applicant does not deserve any sympathy of this Court.

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

9. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon consideration of material on record, evidence, gravity and nature of offence, accusations made as well as complicity of applicant, coupled with the fact that objections raised by the learned A.G.A. in opposition of this application for bail could not be dislodged by the learned counsel for applicant with reference to the record, therefore irrespective of the varied submissions urged by the learned counsel for applicant in support of present application for bail but without expressing any opinion on the merits of the case, this court does not find any sufficient ground so as to enlarge the applicant on bail.

10. As a result, present application for bail fails and is liable to be rejected.

11. It is accordingly rejected.

Order Date :- 13.11.2024

YK