Shyam Bihari v. State of U.P

Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 24383 of 2023 Applicant :- Shyam Bihari Opposite Party :- State of U.P. Counsel for Applicant :- Ghanshyam Das Mishra Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.

¶1List revised.

¶2Heard Sri Ghyam Das Mishra, learned counsel for the applicant, Sri Bade Lal Bind, learned counsel for the State and perused the material on record.

¶3This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant-Shyam Bihari, seeking enlargement on bail during trial in connection with Case Crime No.984 of 2022, under Sections 306, 498-A IPC and 3/4 Dowry Prohibition Act, registered at Police Station Puranpur, District Pilibhit.

¶4The FIR of the present case was lodged on 30.12.2022 by Vimlesh Kumar against the applicant and four other persons alleging therein that his sister was married to the applicant. There was a demand of dowry by the accused persons. The applicant was having an illicit relationship with devrani of the deceased due to which there had been fight between the couple. On 18.10.2022 at about 11 a.m., Madhuri Devi, the deceased called the informant and told him that the accused persons are assaulting her. They will murder her. At about 3 p.m. he reached there and found dead-body of the deceased which was lying on a cot.

¶5Learned counsel for the applicant argued that although the applicant is the husband of the deceased but the marriage of the applicant with the deceased was solemnized 12 years back as even stated by the informant in his application dated 18.10.2022 given to the police. It is argued that the deceased was found to have received a ligature mark on her body and a contusion on the left side. The cause of death was asphyxia as a result of hanging. The contusion was received by the deceased during the course of her committing suicide. It is argued that Km. Priya Devi, the daughter of the deceased aged about 11 years was interrogated by the police who has also stated of the deceased committing suicide. Initially the FIR was lodged under Sections 302, 498-A IPC and 3/4 D.P. Act but the police during investigation deleted Section 302 IPC and added Section 306 IPC and investigation continued in the said Sections. Learned counsel for the applicant argued that there is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased. The applicant has no motive at all to commit the aforesaid offence. It has also been pointed out that the applicant is not having any criminal history as stated in para 22 of the affidavit. The applicant is in jail since

8.4.2023.

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

¶7After hearing the counsel for the parties and perusing the record, it is evident that the daughter of the deceased aged about 11 years who was interrogated by the police, has stated of the deceased committing suicide. There is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased, the applicant has no mens-rea at all, there is no overt act whatsoever of the applicant, which resulted in the death of the deceased. The applicant has no motive at all to commit the aforesaid offence. The applicant has no criminal history.

¶8Looking 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.

¶9Let the applicant-Shyam Bihari, 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 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.

(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 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.

(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 him in accordance with law and the trial court may proceed against him 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.

¶10The 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.

¶11The bail application is allowed. (Samit Gopal, J.) Order Date :- 6.11.2023 Gaurav Kuls High Court of Judicature at Allahabad