Allahabad High Court

Vikul vs State Of U.P. on 23 October, 2024

Author:
Rajeev Misra

Bench:
Rajeev Misra

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Neutral Citation No. - 2024:AHC:170150

Court No. - 72

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38646 of 2024

Applicant :- Vikul

Opposite Party :- State of U.P.

Counsel for Applicant :- Anant Kumar Tiwari,Gaurav Kakkar

Counsel for Opposite Party :- G.A.

Hon'ble Rajeev Misra,J.

Heard Mr. Gaurav Kakkar, the learned counsel for applicant, the learned A.G.A. for State/opposite party-1 and Mr. Monis, the learned counsel for first informant.

Applicant- Vikul, who is a named and charge sheeted accused has filed this bail application seeking his enlargement on bail in Case Crime No. 311 of 2023, under
sections 498A
,
304-B
, IPC and
Section 3
/
D.P. Act, Police Station- Khatauli, District- Muzaffar Nagar, during the pendency of trial i.e. Sessions Trial No. 2317 of 2023 (State Vs. Vikul and others), under
sections 498A
,
304-B
, IPC and
Section 3
/
D.P. Act, Police Station- Khatauli, District- Muzaffar Nagar, now pending in the Court of Additional District Judge/F.T.C.-I, Muzaffarnagar.

At the very outset, the learned counsel for applicant submits that co-accused Amarpal and Smt. Rajesh @ Rakesh who are father-in-law and mother-in-law of the deceased have already been enlarged on bail by this Court by a detailed order dated 4.12.2023, passed in Criminal Misc. Bail Application No. 41695 of 2023 (
Amarpal Vs. State of U.P
.) along with connected Criminal Misc.

Bail Application No. 41859 of 2023 (
Amt Rajesh @ Rakesh Vs. State of U.P.
). For ready reference, the same is reproduced herein below:

"Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41695 of 2023

Applicant :- Amarpal

Opposite Party :- State of U.P.

Counsel for Applicant :- Anil Kumar Shukla,Vikas Srivastava

Counsel for Opposite Party :- G.A.,Gyanendra Kumar Mishra,Ramesh Kumar Mishra

With

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41859 of 2023

Applicant :- Smt Rajesh @ Rakesh

Opposite Party :- State of U.P.

Counsel for Applicant :- Anil Kumar Shukla,Vikas Srivastava

Counsel for Opposite Party :- G.A.,Gyanendra Kumar Mishra,Mohd. Monis,Ramesh Kumar Mishra

Hon'ble Rajeev Misra,J.

1. Heard Mr. Rajesh Dutt Pandey, the learned counsel for applicant, the learned A.G.A. for State and Mr. Gyanendra Kumar Mishra alongwith Mr. Ramesh Kumar Mishra, the learned counsel representing first informant.

2. Perused the Court.

3. The compliance affidavit filed by learned A.G.A. in Criminal Misc. Bail Application No. 41859 of 2023 in Court today is taken on record.

4. These applications for bail have been filed by applicants-Amarpal and Smt Rajesh @ Rakesh seeking their enlargement on bail in Case Crime No. 311 of 2023 under
Sections 498A
,
304B
I.P.C. and Section 3/4 D. P. Act, Police Station-Khatauli, District-Muzaffarnagar, during the pendency of trial.

5. Record shows that marriage of Vikul, son of applicants was solemnized with Nishu (sister of first informant) on 21.02.2019. However, just after expiry of a period of 4 years, 5 months and 6 days from the date of marriage of son of first informant,an unfortunate incident occurred on 22.07.2023 in which daughter-in-law of applicants namely Nishu died as she is alleged to have consumed some poisonous substance. It is the case of the applicant that immediately after the occurrence, the victim was rushed to the Hospital. However, ultimately she succumbed to the poisonous substance consumed by her on 27.07.2023 itself. Thereafter information regarding the death of deceased was given by the husband of the deceased to his in-laws. Subsequent to above, Gaurav brother of the deceased lodged an F.I.R. dated 27.07.2023, which was registered as Case Crime No. 311 of 2023 under
Sections 498A
,
304B
I.P.C. and Section 3/4 D. P. Act, Police Station-Khatauli, District-Muzaffarnagar. In the aforesaid F.I.R. five persons namely Vikul, Vipul, Rajesh and Amarpal (applicants herein) as well as Vaishali have been nominated as named accused.

6. The gravamen of the allegations made in the F.I.R. is to the effect that marriage of sister of first informant, namely Nishu was solemnized with Vikul in the year 2019. At the time of marriage sufficient amount of goods and dowry were given. However, subsequently, additional demand of dowry was made. As the said demand of dowry was not fulfilled, physical and mental cruelty was committed upon the sister of first informant. Ultimately, the sister of first informant was put to death. The F.I.R. concludes with the recital that information regarding death of deceased was given by the brother-in-law of the first informant.

7. After aforementioned F.I.R. was lodged, the Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII
Cr.P.C
. Thereafter, inquest (Panchnama) of the body of deceased was conducted 28.07.2023. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was categorized as homicidal and the cause of death of deceased was specified as beating and administering poison. Subsequent to above, post-mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon, who conducted autopsy of the body of the deceased, the cause of death of deceased could not be ascertained. Therefore viscera of the deceased was preserved. The Autopsy Surgeon, however, found following ante mortem injuries on the body of the deceased:

1. Bluish contusion of size 13 cm x 6 cm present on Lt. thigh, 12 cm above from knee joint.

ii. Bluish contusion of size 18 cm x 5 cm present on Rt. thigh 14 cm above from knee joint.

iii. Bluish contusion of size 6cm. x 4 cm present on Rt elbow.

iv. Bluish contusion of size 5cm. x 2 cm present on Lt. knee joint.

8. During course of investigation, Investigating Officer examined the first informant and other witnesses under
Section 161
Cr.P.C.. Witnesses so examined have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of three of the named accused namely Vikul (husband), Amarpal (father-in-law) and Smt. Rajesh (mother-in-law) is fully established in the crime in question. He accordingly submitted the charge-sheet dated 20.09.2023 whereby above named accused have been charged sheeted under
Sections 498A
,
304B
I.P.C. and Section 3/4 D. P. Act, whereas the other named accused have been exculpated.

9. Learned counsel for applicant contends that the applicants are father-in-law and mother-in-law of the deceased. Though the applicants are named and charged sheeted accused, yet they are liable to be enlarged on bail. With reference to the material on record, he submits that the deceased was a short tempered lady and she has taken the extreme step of terminating her life by consuming some poisonous substance. Bonafide of applicant is also explicit from the fact that no grievious or fatal external ante-mortem injury was found on the body of the deceased. Applicants being father-in-law and mother-in-law of the deceased cannot be said to be the beneficiary of the alleged demand of dowry. The husband of the deceased is already languishing in jail. No abetment, instigation or conspiracy can be inferred against applicants from the record either. Allegations made in the F.I.R. regarding demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non-fulfillment of additional demand of dowry are false and concocted. Furthermore, they are vague and bald allegation as they have not been substantiated by material particulars upto this stage. Referring to the statement of first informant (brother of the deceased) recorded under
Section 161
Cr.P.C., copy of which is on record at page 39 of the paper book, learned counsel for applicants contends that even in the aforesaid statement the first informant has not explained the allegations made in the F.I.R. Moreover, the said statement clearly shown that amount was credited in the account of the husband of deceased. He therefore contends that allegations made in the F.I.R. regarding demand of additional dowry and commission of cruelty upon deceased have not been substantiated by material particulars therefore the same is liable to be ignored upto this stage. According to learned counsel for applicant though F.I.R. is not the encyclopedia of the prosecution case, but it must disclose the basic prosecution case. In support of above he has relied upon the following judgements of Supreme Court:

i.
Manoj and others Vs. State of Maharashtra
, (1999) 4 SCC 268,

ii.
Subhash Kumar Vs. State of Uttarakhand
, (2009) 6 SCC 641,

iii.

Achhar Singh Vs. State of M.P.
, (2021) 5 SCC 543

10. No attempt has been made by first informant to explain the omission in the F.I.R. in his statement under
Section 161
Cr.P.C. As such, the same are liable to be ignored at this stage. Placing reliance upon the judgement of Apex Court in
Kahkashan Kausar @ Sonam and others Vs. State of Bihar and Others
, (2022) 6SCC 599, learned counsel for applicants submits that since the allegations made in the F.I.R. regarding demand of additional dowry and commission of cruelty upon the deceased have not been substantiated by material particulars, therefore, the same are liable to be ignored by this Court at this stage.

11. Even otherwise applicants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants are in custody since 30.07.2023. As such, they have undergone more than four month of incarceration. Police report (charge-sheet) in terms of
Section 173 (2)
Cr.P.C. has already been submitted, therefore the entire evidence sought to be relied upon by the prosecution against applicants stands crystallised. Upto this stage, no such circumstance has emerged from the record necessitating the custodial arrest of applicants during the pendency of trial. Referring to the judgement of Apex Court in
Sumit Subhashchandra Gangwal Vs. State of Maharashtra
, 2023 LiveLaw (SC) 373 (Paragraph 5), the learned counsel for applicants thus submit 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.

12. Per contra, the learned A.G.A. for State and the learned counsel for first informant have vehemently opposed the prayer for bail. They submit that since the applicants are the father-in-law and mother-in-law of the deceased, named and charge sheeted accused therefore they do not deserve any indulgence by this Court. According to the learned counsel for first informant, the deceased was a young lady aged about 26 years, who has died in unnatural circumstance. Occurrence has taken place in the house of applicants and within seven years of the marriage of the deceased. Therefore the death of the deceased is a dowry death. By reason of above, the burden is upon the applicants to not only explain the manner of occurrence but also their innocence in terms of
Sections 106
and
113B
of Evidence Act. However, the applicants have miserably failed to discharge the said burden upto this stage. They therefore submit that applicants do not deserve any sympathy of this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

13. Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel for first informant, 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 Smt. Rajesh isa lady therefore she is entitled to the benefit of the provisions contained in proviso to
Section 437
Cr.P.C., applicants are the father-in-law and mother-in-law of the deceased therefore prima facie they cannot be said to be the beneficiary of the alleged demand of additional dowry, allegations made in the F.I.R. regarding demand of additional dowry and commission of cruelty upon the deceased have not been substantiated with material particulars, therefore the same are liable to be ignored by this Court at this stage in view of law
laid down by
Apex Court as noted herein above, departure has been made by first informant in his statement under Section 161 Cr.pc. from the prosecution story as unfolded in the F.I.R., departure so made remains unexplained, though the F.I.R. is not the encyclopedia of prosecution case, but it must disclose the basic prosecution case, omission in the F.I.R. regarding new facts emerging in the statement of the first informant remain unexplained upto this stage, since the allegations made in the F.IR. regarding demand of additional dowry and commission of curelty upon the decased on account of non-fulfillment of dowry have not been substantiated by material particular, therefore, same are liable to be ignored upto this stage in view of law
laid down by
Apex Court in
Kahkashan Kausar @ Sonam and others
(supra), no such circumstance has emerged on the record on the basis of which it can be conclusively concluded that the applicants have abeted, instigated or conspired in the commission of the crime or the deceased committed suicide on account of an immediate act of applicants, bonafide of applicants is however explicit from the fact that no grievious or fatal external ante mortem injury was found on the body of the deceased, the clean antecedents of applicant, the period of incarceration undergone, the police report in terms of
Section 173 (2)
Cr.P.C. has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against applicant stand crystalized, yet in spite of above, the learned AG.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, the judgement of the Supreme Court in
Sumit Subhashchandra Gangwal
(supra), therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to present application for bail but without expressing any opinion on the merits of the case, applicants have made out a case for bail.

14. Accordingly, present applications for bail are allowed.

15. Let the applicants-Amarpal and Smt Rajesh @ Rakesh involved in aforesaid case crime number be released on bail on their furnishing a personal bond each 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) Applicants will not tamper with prosecution evidence.

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

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

16. 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 applicants and send them to prison "

Learned counsel for applicant contends that case of present applicant is similar and identical to that of aforesaid bailed out co-accused i.e. father-in-law and mother-in-law. Except for the fact that applicant is husband of the deceased, there is no such distinguishing feature on the basis of which case of present applicant can be so distinguished from aforesaid bailed out co-acccused so as to deny him bail. He, therefore, contends that in view of above and for the facts and reasons mentioned in above order, present applicant is also liable to be extended the benefit of bail.

It is next contended by the learned counsel for applicant that bona fide of the applicant is explicit from the fact that no such ante-mortem injury was found on the body of deceased, which can be said to be grievous or fatal Simple injuries i.e. ante-mortem contusion was found on the body of deceased. Since the cause of death of deceased could not be ascertained, therefore the visecra of deceased was preserved. As per F.S.L report dated 22.7.2023, submitted by Senior Scientific Assistant, a foreign chemical compound namely, Aluminium Phosphide was found in the body parts of the deceased, sent for chemical examination.

Learned counsel for applicant submits that since aforesaid chemical compund has a very pungent smell therefore, the same cannot be administered by any person. Similar view has been taken by Supreme Court in
Jaipal Vs. State of Haryana
, (2003) 1 SCC 169.

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 29.7.2023. As such, he has undergone more than one year and two 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 necessitating the custodial arrest of applicant during the pendency of trial. The trial of applicant has already commenced before Court below. The deposition of P.W.1 has already been recorded. On the above premise, the learned counsel for applicant submits that in case applicant is enlarged on bail, then in that eventuality it cannot be said that if the applicant is enlarged on bail he shall either terrorize the witnesses or shall hamper the course 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 and the learned counsel for first informant have vehemently opposed the present application. They submit that since applicant is husband of deceased, a named and charge sheeted accused, therefore, no indulgence be granted by this Court in favour of applicant. The occurrence giving rise to present criminal proceedings has occurred in the house of applicant. Applicant is an inmate of the house in which the occurrence has occurred, therefore, the burden is upon the applicant to not only explain the manner of occurrence, but also his innocence in terms of
Section 106
and
113 B
of the Evidence Act. The said burden does not stand discharged upto this stage. They therefore, contend that no good or sufficient ground has emerged so as to enlarge the applicant on bail.

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 father-in-law and mother-in-law of deceased have already been enlarged on bail by this Court, vide order dated 4.12.2023, except for the fact that applicant is husband of the deceased, there is no other distinguishing feature on the basis of which case of present applicant can be so distinguished so as to deny him bail, the autopsy surgeon who conducted autopsy of the body of deceased did not find any grievous or fatal injury on the body of deceased, the ante-mortem injuries found on the body parts of deceased are simple in nature (contusion), as per F.S.L report, a foreign chemical compound namely, Aluminium phosphide was found in the body parts of deceased, in view of the fact that aforesaid chemical compund have pungent smell the same cannot be administered to any person similar view has been expressed by Apex Court in the case of
Jaipal
(Supra), the trial of applicant has already commenced, upto this stage, the first informant has already deposed before Court below.
In case applicant is enlarged on bail, then in that eventuality it cannot be said that if the applicant is enlarged on bail he shall either terrorize the witnesses or shall hamper the course of trial, 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, yet inspite of above, the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating custodial arrest of applicant during pendency of trial, the judgement of Supreme Court in Sumit Subhaschandra Gangwal and another Vs. The state of maharashtra and Another, 2023 Live law (SC) 373 the period of incarceration undergone, the clean antecedents of applicant, therefore irrespective of the objections raised by the learned A.G.A. and the learned counsel for first informant in opposition to the application for bail, but without making any comment on the merits of the case, the applicant has made out a case for bail.

Accordingly the bail application is allowed.

Let the applicant Vikul be released on bail in aforesaid case crime number on his 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 SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/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.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A
IPC
.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A
IPC
.

(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 THE HIM/HER 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/her 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 :- 23.10.2024

Arshad