Court No.21
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2458 of 2018 Applicant :- Anuj Opposite Party :- State of U.P.
Counsel for Applicant :- Mr Gautam Chaudhary,Gagan Mehta,Lav Srivastava Counsel for Opposite Party :- G.A.,Gavendra Pal Singh
Hon'ble Dinesh Pathak,J.
1. Heard Sri V. P. Srivastava, learned Senior Advocate assisted by Ms. Renu Singh, learned counsel for the applicant and Sri Atrey Datta Mishra, learned A.G.A. for the State.
2. The present bail application has been filed on behalf of the applicant for enlarging him on bail in Case No.574/12/2015 arising out of Case Crime No.124 of 2011, under Sections 498A, 304B IPC and Section 3/4 of the Dowry Prohibition Act, 1961 (in brevity 'D.P.Act'), Police Station-Khair, District-Aligarh.
3. First bail application being Criminal Misc. Bail Application No.29699 of 2017 (Anuj Vs State of U.P.) had been rejected vide order dated 23.10.2017 passed by the Hon'ble Mr. Justice Vinod Kumar Mishra. Present matter has been nominated to this Bench, vide order dated 07.05.2021, passed by Hon'ble Acting Chief Justice.
4. As per FIR version, the sister of first informant namely Dharmendra Kumar had tied nuptial knot with Anuj (present applicant) on 04.12.2008 according to Hindu rituals. After marriage, she was subjected to cruelty and harassment due to non fulfillment of additional demand of either a Maruti car or cash amounting Rs.3 lakhs, in the nature of dowry. While sister of the first informant had narrated her ordeal to her family members, they tried to persuade her in-laws. On 08.10.2010, an anonymous call was received giving information that the accused, as mentioned in the FIR, were trying to kill his sister. On 09.10.2010, while he along with family members reached on the spot, they saw the victim lying dead on the floor.
5. After due investigation, the Investigating Officer has submitted final report dated 19.05.2011 which was accepted by order dated 23.02.2012. Ultimately, matter was remitted before the Trial Court again vide order dated 15.10.2012 passed by the Revisional Court. After remand, vide order dated 19.08.2014, learned Magistrate has passed the order for further investigation. In pursuance thereof, matter was investigated, and again final report dated 13.12.2014 has been submitted. On protest petition being filed, Trial Court has rejected the second final report dated 13.12.2014 vide its order dated 31.05.2016 and taken cognizance under section 498-A, 304-B IPC and Section 3/4 of the Dowry Prohibition Act, 1961. Aforesaid order was affirmed in revision, vide order dated 07.03.2017. In pursuance of the orders passed by the trial court, accused/applicant was arrested on 12.05.2017. His bail application has been rejected by trial court vide order dated 15.05.2017.
6. Learned Senior Counsel seeks the release of the present applicant on bail on the ground of period of incarceration and the statement of father of the victim coupled with the statement of Dr. S.K. Verma and the injuries shown in the Post Mortem Report.
7. Learned Senior Counsel has advanced his submission that Ram Sanehi, father of the victim himself has submitted a notarized affidavit dated 09.10.2010 alleging therein that on information he came to know that his daughter had hanged herself under the influence of illness and on enquiry he did not find mistake of any person (Page 46 and 47 of paper book). In his statement under section 161 Cr.P.C. (Page 52 of the paper book), he has stated that the residents of Khair (in-laws of victim) have never demanded any dowry from him. He had no complaints in lifetime of his daughter and so far as amount of Rs.3 lakhs is concerned, it was demanded by daughter in the nature of debt. He has shown his unawareness as to why she has ended her life within a period of two years of the marriage. Dr. S.K. Verma, Senior Physician, in his statement under section 161 Cr.P.C. (Page no.89-90 of paper book) stated that she had died due to asphyxia as a result of ante mortem strangulation. It is further stated/suggested that strangulation could be caused due to wide noose of saree (cloth). Learned Senior Counsel has also drawn attention of this Court towards the mark of injuries as shown in the Post Mortem Report wherein, no other injury mark has been mentioned except the ligature mark. It is further submitted that the accused/applicant is languishing in jail since 12.05.2017 and he has remained in prison for more than 4 and ½ years, therefore, he deserves to the released on bail, unless he is convicted by the competent Court. There are no chances of applicant fleeing away from judicial process or tampering with prosecution evidence. He undertakes to appear personally on each and every date and also not seek any unnecessary adjournment during trial. In case, he is enlarged on bail, he will not misuse liberty of bail.
8. Per contra, learned A.G.A. has vehemently opposed the bail application on the ground that clear cut case is made out against the present applicant on the basis of averment as made in the FIR and the other evidences as collected by the I.O., which have rightly been considered by the trial court in taking cognizance of the case under section 498A, 304B IPC and under section ¾ of the D.P. Act. First bail application of the applicant was rejected after considering all the aspects of the matter and no new ground is made out to enlarge the present applicant on bail.
9. In the Post Mortem Report, antemortem injury has been shown that ligature mark size 27 cm x 1.5 cm, reddish brown in colour going transversely 3.0 cm from right ear and 7 cm from left ear between chin and thyroid cartilage, s/c tissue underneath ligature marked ecchymosed. Hyoid bone left corner fracture. There is no other sign of injury except the ligature mark i.e. 27 cm x 1.5 cm, which could be caused due to width of noose. It has been submitted that there is no doubt that death of victim was caused within 7 years of marriage otherwise than under normal circumstances, although there is no evidence on the record to show that soon before her death victim was subjected to cruelty and harassment by the husband or his family members for, or in connection with, any demand of dowry. It has also been submitted that there is no existence of proximate live link between the alleged cruelty or harassment for demand of dowry and death of victim.
10. Statement of doctor under section 161 Cr.P.C. corroborates the injury as shown in the Post Mortem Report. The doctor himself has suggested that strangulation could be caused due to wide noose of saree (cloth). Statement of victim's father under section 161 Cr.P.C. and affidavit dated 09.10.2010 furnished by him also create prima facie doubt for commission of offence under the sections as mentioned in the FIR.
11. After considering the evidence available on the record, I am of the view that, prima facie, incident as narrated in the FIR appears to be suicidal hanging more than a homicidal death. Even assuming that the evidence as available on the record, at present, is made out a case of dowry death, as enunciated under section 304B IPC, in my opinion, the present applicant, prima facie, would be utmost liable for a lesser punishment of 7 years and out of that he had already undergone about four and half years (4 & ½) in incarceration, which is more than the half period of the minimum punishment.
12. Upon hearing learned counsel for the parties, perusal of the record and considering the complicity of accused, totality of facts and circumstances of the case as well as the dictum of Apex Court in the case of Dataram Singh vs. State of U.P. and another, (2018)3 SCC 22, larger mandate of Article 21 of the Constitution of India, without expressing any opinion on merits of the case at this stage, I find it an appropriate case to release applicant on bail.
13. The application is allowed. Let applicant, Anuj involved in aforesaid case be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of Court concerned with following conditions:
(i) The applicant shall not tamper with the prosecution evidence and shall not harm or harass the victim/complainant in any manner whatsoever.
(ii) The applicant shall abide the orders of Court, shall attend the Court on each and every date and shall not delay the disposal of trial in any manner whatsoever.
(iii) The applicant shall not indulge in any unlawful activities.
(iv) The applicant shall not misuse the liberty of bail in any manner whatsoever.
14. The party shall file computer generated copy of this order downloaded from the official website of High Court Allahabad.
15. 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.
16. The identity, status and residential proof of sureties shall be verified by Court concerned, and in case of breach of any of above conditions by applicant, the Court concerned shall be at liberty to cancel the bail.
Order date : 22.09.2021 Manish Himwan