Brijesh Nishad v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40067 of 2023 Applicant :- Brijesh Nishad Opposite Party :- State of U.P. Counsel for Applicant :- Sharad Kumar Srivastava Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J.

¶1Heard Mr. Sharad Kumar Srivastava, the learned counsel for applicant and the learned A.G.A. for State.

¶2Perused the record.

¶3This application for bail has been filed by applicant Brijesh Nishad seeking his enlargement on bail in Case Crime No. 48 of 2021, under Sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station-Jafarganj, District Fathpur during the pendency of trial.

¶4Record shows that marriage of applicant Brijesh Nishad was solemnized with Karishma on 2.6.2019. However, even before expiry of a period of two years from the date of marriage of applicant, an unfortunate incident occurred on 31.5.2022, in which the wife of applicant died as she committed suicide by hanging herself.

¶5The information regarding the aforesaid incident at the concerned Police Station was not given by applicant or any of his family members but by Babu Ram. On the said information, the inquest (panchayatnama) of the body of deceased was conducted on 31.5.2021, In the opinion of witnesses of inquest (panch witnesses), the nature of death of deceased was categorized as suicidal and the cause of death of deceased was said to be hanging.

¶6Thereafter, the post mortem of the body of the deceased was conducted. The autopsy surgeon who conducted autopsy of the body of deceased opined that the cause of death of the deceased is asphyxia as a result of ante-mortem strangulation. The autopsy surgeon found following ante-mortem injuries on the body of deceased: "1. Contusion (5x5) cm in Rt. occipital done.

¶2Contusion (3x3) cm in Rt. penlal bone

¶3Contusion 6x3 cm in (Rt) mid of temporal bone

¶4Incomplete ligature mark size 12 x 1 cm present on parietal of both jaw (Lower) and below thyroid cartilage around the ligature margin below from Rt. ear 5 cm from chin 5 cm from Lt. ear 5cm ......"

¶7Subsequent to above, the first informant Deshraj lodged an F.I.R. dated 1.6.2021, which was registered as Case Crime No. 48 of 2021, under Sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station-Jafarganj, District Fathpur. In the aforesaid incident, three persons namely, Brijesh Nishad, Baburam and Shivkali have been nominated as named accused.

¶8After aforementioned F.I.R. was lodged, Investigating officer proceeded with statutory investigation of concerned case crime number in terms of chapter XII Cr.P.C.

¶9During course of investigation, Investigating Officer examined first informant and others 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 course of investigation he came to the conclusion that complicity of named accused is established in the crime in question. He, accordingly submitted the charge sheet dated

27.8.2021, whereby all the named accused including applicant have been charge sheeted under sections 498A, 304B IPC and Section 3/4 D.P. Act.

¶10Learned counsel for applicant submits that though the applicant is husband of deceased and named as well as charge-sheeted accused, yet he is liable to be enlarged on bail. It is next contended by learned counsel for applicant that charge sheet was submitted against applicant on 27.8.2021. After submission of aforesaid charge sheet, cognizance was taken upon same by concerned Magistrate. However, as offence complained of is triable by court of Sessions, therefore, concerned Magistrate committed the case to Court of sessions. Resultantly, Sessions Trial No. 706 of 2021 (State of U.P. Vs. Brijesh Nishad and others). Subsequently, another Sessions Trial No. 571 of 2022 (State of U.P. Vs. Brijesh Nishad and others) was aso connected with aforesaid trial. However, both the trial was clubbed together. Up to this stage, three prosecution witnesses of fact namely, P.W.1, P.W.2 and P.W.3 have been deposed before Court below. However, the aforesaid witnesses have not supported the F.I.R.

¶11Even 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 31.5.2021. As such, he has undergone more than four 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 the prosecution against applicant stands crystallized. However, upto this stage, no such, circumstance has emerged 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 trial.

¶12Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that since applicant is the husband of the deceased a named as well as charge sheeted accused, therefore he does not deserve any indulgence by this Court. In the opinion of autopsy surgeon, the cause of death of deceased is Asphyxia as a result of ante-mortem strangulation. The death of deceased has occurred at her marital home and within 7 years of her marriage. Therefore, same is dowry death. The death of deceased is highly unnatural. In view of above, learned A.G.A. submits that burden is upon the applicant to not only explain the manner of occurrence under Section 106 but also his innocence under section 113-B of the Evidence Act. However, the applicant has miserably failed to discharge the said burden up to this stage. As such, applicant does not deserve any sympathy of this Court.

¶13When confronted with above, the learned counsel for applicant could not overcome the same.

¶14Having 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 the death of deceased has occurred even before before expiry of a period of two years from the date of her marriage and at her marital home, therefore, the death of deceased is a dowry death, therefore applicant is under legal obligation to not only explain the manner of occurrence but his innocence, however, up to this stage, applicant has miserably failed to discharge the said burden in terms of Sections 106 and 113B of the Evidence Act, there is nothing on record to infer the innocence of the applicant either, the witnesses P.W.1 and P.W.2, who have deposed before court below, have supported the F.I.R, therefore, irrespective of the varied submissions urged by the learned counsel for applicant in support of the present application for bail, but without making any comments on the merits of the case, this Court does not find any good or sufficient ground to enlarge the applicant on bail.

¶15In view of above, the application fails and is liable to be rejected.

¶16It is accordingly rejected. Order Date :- 16.10.2023 Arshad High Court of Judicature at Allahabad