Atul v. State of U.P

Court No. - 65 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 38053 of 2023 Applicant :- Atul Opposite Party :- State of U.P. Counsel for Applicant :- R.P.S. Chauhan Counsel for Opposite Party :- G.A. Hon'ble Rajeev Misra,J. Heard Mr. R.P.S. Chauhan, the learned counsel for applicant and the learned A.G.A. for State. This application for bail has been filed by applicant Atul seeking his enlargement on bail in Case Crime No.411 of 2021, under Sections 498-A 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Bisauli, district Budaun, during the pendency of trial. Perused the record. Record shows that marriage of applicant Atul was solemnized with Diksha on 24.06.2018. From the aforesaid wedlock, a son Moksha Pratap Singh was born. However, after expiry of a period of two years and four months from the date of marriage of applicant, an unfortunate incident occurred on

19.10.2021 in which wife of the applicant died as she consumed some poisonous substance. It is the case of the applicant that after the occurrence had occurred, the victim was rushed to the hospital. The said fact is sought to be established from the statement of first informant itself recorded under Section 161 CrPC, copy of which is on record at page 46 of the paper book. Thereafter, the inquest (Panchayatnama) of the deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was categorized as suicidal and the cause of death of the deceased was said to be consumption of some poisonous substance. Thereafter, the post-mortem of the body of deceased was conducted. The Doctor, who conducted autopsy of the body of deceased, opined that the cause of death of deceased could not be ascertained therefore, the viscera was preserved. The viscera report of the deceased was subsequently submitted. As per the viscera report, a foreign chemical compound, namely, Oregano Phosphorus Insecticide was found in the parts of body of the deceased sent for chemical examination. However, the autopsy surgeon did not find any internal or external ante-mortem injury on the body of the deceased. After aforementioned proceedings had been completed, a delayed first information report dated 25.10.2021 came to be lodged by first informant, namely, Jai Singh (father of the deceased) and was registered as Case Crime No.0411 of 2021, under Sections 498-A 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Bisauli, district Budaun. In the aforesaid FIR, eight persons, namely, Atul-applicant herein (husband); Ram Autar Singh (fahter-in-law); Smt. Brahma Devi (mother-in-law); Payal (Nanad); Gaurav (Jeth); Shekhar (Jeth); Nelam (Jethani) of the deceased and one Viju Singh have been nominated as named accused. The gravamen of the allegations made in the first information report is to the effect that marriage of Diksha, daughter of the first informant, was solemnized with Atul (applicant herein) in accordance with Hindu rites and customs. At the time of marriage, sufÏcient amount of dowry and goods were given. However, the in-laws' of the deceased were dissatisfied with the same and demand of additional dowry by way of a four wheeler and rupees five lack was made. But as demand of additional dowry was not fulfilled, physical and mental cruelty was committed on the daughter of first informant. Ultimately, the daughter of the first informant died. After aforementioned F.I.R. was lodged, Investigating OfÏcer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant and other witnesses and recorded their statements under Section 161 CrPC. Witnesses so examined have substantially supported the F.I.R. On the basis of above and other material collected by the Investigating OfÏcer during course of investigation, he came to the conclusion that complicity of only three of the named accused, namely, Atul-husband (applicant herein); Smt. Brahma Devi (mother-in-law) and Ram Autar Singh (father-in-law) of the deceased is fully established in the crime in question. In view of above, Investigating OfÏcer submitted police report under Section 173 (2) CrPC on 09.11.2023, whereby aforementioned named accused have been charge-sheeted under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, whereas the other named accused have been exculpated. Learned counsel for the applicant submits that though applicant is the husband of the deceased, a named/charge-sheeted accused yet, he is liable to be enlarged on bail. The deceased was a short tampered lady and she took an extreme step of terminating her life by committing suicide by consuming some poisonous substance. According to the learned A.G.A., as per the viscera report dated 21.03.2022 a foreign chemical compound, namely, Oregano Phosphorus Insecticide was found in the body parts of the deceased sent for chemical examination. The bona fide of the applicant is further explicit from the fact that the autopsy surgeon, who conducted autopsy of body of the deceased, did not find any external or internal ante-mortem injury on the body of the deceased. With reference to the FIR, the learned counsel for applicant submits that the allegations made in the FIR with regard to demand of dowry and commission of cruelty upon the deceased on account of non-fulfillment of additional demand of dowry are vague and bald allegations, inasmuch as, the same are devoid of material particulars. However, the material particulars with regard to the manner in which the alleged demand of dowry was made and the cruelty as alleged to have been committed is conspicuous by its absence. He, therefore, contends that in view of the law laid down by the Apex Court in Kahkashan Kausar @ Sonam & others Vs. State of Bihar (2022) 6 SCC 599, the said allegations are liable to be ignored by this Court at this stage. Prima facie, the death of the deceased is a suicidal death. Considering the nature of death of deceased, applicant is not liable to be awarded the maximum sentence under Section 304-B IPC. 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 24.08.2022. As such, he has undergone more than one year and two months of incarceration. The police report under Section 173 (2) CrPC has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of applicant. He, therefore, contends 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 vehemently 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. The deceased was a young lady aged about 25 years whose death has occurred in unnatural circumstance. The occurrence has taken place within seven years of marriage of the deceased and that too in her marital home. As such, the death of the deceased is a dowry death. Since the applicant is the husband of the deceased and an inmate of the house therefore, the burden is upon the applicant to not only explain the manner of occurrence but also his innocence in terms of Sections 106 and 113-B of the Evidence Act. However, upto this stage, the applicant has miserably failed to discharge the said burden. He, therefore, contends that no sympathy be shown by this Court in favour of applicant. However, he could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage. Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that prima facie the death of the deceased is a suicidal death, the bona fide of the applicant is explicit from the fact that no external or internal ante-mortem injury was found on the body of the deceased by the autopsy surgeon, considering the nature of death of the deceased the applicant is not liable to be awarded the maximum sentence under Section 304-B IPC in case he is convicted, the allegations made in the FIR with regard to alleged demand of additional dowry and commission of cruelty upon the deceased in pursuit of the same are vague and bald allegations being devoid of material particulars, the first informant in his statement under Section 161 CrPC has not detailed the manner in which the alleged demand of dowry was made nor the manner in which alleged cruelty was committed upon the deceased, therefore, in view of law laid down by Apex Court in Kahkashan Kausar @ Sonam & others (supra), the aforesaid allegations are prima facie liable to be ignored by this Court at this stage, the police report under Section 173 (2) CrPC i.e. charge-sheet has already been submitted as such the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized, yet in spite of above the learned A.G.A. could not point out any such incriminating circumstance from the record necessitating the custodial arrest of applicant during the proceeding of trial, the judgement of Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra 2023 Live Law (SC) 373 (paragraph 5), the clean antecedents of applicant, the period of incarceration undergone, therefore irrespective of the objections raised by the learned A.G.A. in opposition to the present application for bail 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 Atul, 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 sufÏcient 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 sufÏcient 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 :- 16.11.2023. Rks. High Court of Judicature at Allahabad