Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 13284 of 2019 Applicant :- Akram Opposite Party :- State of U.P.
Counsel for Applicant :- Kuldeep Kumar,Brajesh Kumar,Devesh Mishra,Ishwar Chandra Tyagi,Vinod Kumar Mishra Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Ishwar Chandra Tyagi, learned counsel for the applicant, Sri Brij Bhushan Upadhyay, learned AGA for the State and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Akram, seeking enlargement on bail during trial in connection with Case Crime No. 145 of 2018 (related to S.T. No. 920 of 2018), under Sections 323, 302, 506 I.P.C. and 3/4 D.P. Act, registered at P.S. Agauta, District Bulandshahr.
Learned counsel for the applicant argued that the applicant is the husband of the deceased. It is argued that two real sisters namely Smt. Naseen Bano who is the deceased and Smt. Khurshida were married to two real brothers namely Akram the present applicant and Istakbal respectively. It is argued that the marriage of the deceased was solemnized with the applicant on 15.2.2004 and on the same day the marriage of her sister with the brother of the applicant was also solemnized. It is further argued that the first information report which was lodged by Zulfikar the brother of the deceased, names ten accused persons namely Khalil, Akram the present applicant, Istkar, Abdul Khalik, Vakil, Akil, Istakbal, Aasma, Rizwana and Vakila. In so far as Khalil who is father-in-law, Akram the present applicant who is the husband and Vakil the brother of the applicant are concerned, the police has submitted charge sheet against them only, copy of the charge sheet has been annexed as annexure no. 6 to the affidavit. It is argued that in so far as it relates to other seven co-accused persons being Istakar, Abdul Khalik, Akil, Istakbal, Aasma, Rizwana and Vakila are concerned, police found their participation in the crime to be false and hence exonerated them from the case while filing charge sheet against the three aforesaid accused persons.
It is argued that the marriage of the deceased with the applicant was solemnized on 15.2.2004. The cause of death of the deceased is burn injuries which were reported to be 95% deep thermal burn extending from face to other parts of the body. The deceased was initially taken to Jagdamba Super Speciality Hospital, Meerut wherein a medico legal report was prepared and sent to the concerned police station wherein she was brought by her husband who is the present applicant and the doctor therein found that she was not in a condition to give any statement, the said document is annexed as annexure no. 3 to the affidavit. It is argued that from there she was referred to a higher centre for better management after which she was taken to LLRM Medical College, Meerut even from where she was further referred to higher centre for her management. It is argued that no version or statement of the deceased was recorded at the said two hospitals when she was brought there. It is argued that later on when she was brought to Safdarjung Hospital, Delhi her statement under Section 161 Cr.P.C. was recorded on 2.8.2018, copy of which is annexed as annexure no. 5 to the affidavit, in which she has stated that she was issueless and due to the said reason she was assaulted by her husband, who is the present applicant, devar Istakar, Vakil, Akil and Abdul Khalik and daughter-in-law of Abdul Khalik namely Rizwana, devrani Aasma and nanad Vakila. Later on her husband brought kerosene oil and he along with the co-accused Aasma and Rizwana poured kerosene oil and set her on fire as a result of which she burnt.It is further argued that the said statement is not trustworthy at all and is a result of tutoring. It is argued that the deceased was not in a condition to give statement as she was in a state of extensive burn which was even on her face.
Learned counsel for the applicant thus argued that false implication of the applicant is writ large in the present case and the deceased committed suicide due to the reason that she was unable to bear a child whereas her real sister who was married to the real brother of the applicant, had a child from the wedlock. It is argued that it is not proper to rely upon the said statement which may be treated as dying declaration at this stage as the same appears to be a manipulated document. Learned counsel for the applicant argued that the applicant has no other criminal antecedents as stated in para-17 of the affidavit and is in jail since 05.8.2018.
Per contra, learned AGA vehemently opposed the prayer for bail and argued that the applicant is the husband of the deceased. The deceased was burnt by pouring kerosene oil on her by her husband who is the present applicant and other co- accused persons which has been mentioned by her in her statement which annexure no. 5 to the affidavit. It is argued that extensive burn received by her were the cause of her death. Learned A.G.A. further argued that the applicant is the husband and although case is under Section 302 I.P.C. but he was under the obligation to look after his wife and hence, the bail application be rejected.
After hearing learned counsels for the parties and perusing the record, it is apparent that although the applicant is the husband of the deceased but he took the deceased to the hospital at the very first instance which gets fortified from annexure no.3 wherein the doctor stated that she was not in a condition to give any statement. Subsequently, she was referred to LLRM Medical College,Meerut and later on to Safdarjung Hospital, Delhi where while being treated she died. The marriage is 14 years old. The implication of seven other accused persons has been found to be faulty by the Investigating Officer and he has exonerated them. In so far as the statement recorded under Section 161Cr.P.C. of the deceased is concerned, though she has named the applicant Akram, Aasma and Rizwana as the person who poured kerosene on her and set her fire but the police has exonerated the accused Aasma and Rizwana from the present case.
Looking 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.
Let the applicant- Akram, 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.
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 and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
(Samit Gopal,J.) Order Date :- 6.1.2021 Naresh