Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44743 of 2018 Applicant :- Arjun Kushwaha Opposite Party :- State Of U.P.
Counsel for Applicant :- Vinay Kumar Singh,Rajesh Kumar Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Vinay Kumar Singh, the learned counsel for the applicant and the learned A.G.A. for the State.
This application for bail has been filed by the applicant-Arjun Kushwaha seeking his enlargement on bail in Session Trial No. 206 of 2018 under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Samthar, District-Jhansi, now pending in the Court Additional Sessions Judge/F.T.C. (OWA), Jhansi arising out of Case Crime No. 062 of 2018, under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Samthar District-Jhansi, during the pendency of the trial.
Perused the record.
From the record, it transpires that the marriage of the son of the applicant, namely, Madhav @ Madhu was solemnized with Mayawati on 10.02.2012 in accordance with Hindu Rites and Customs. From the aforesaid wedlock of the son of the applicant and Mayawati, the daughter-in-law of the applicant, a son was born, who is said to be aged about three years. However, after the expiry of a period of six years and four months from the date of marriage of the son of the applicant, an unfortunate incident occurred on 26.06..2018, in which the daughter-in-law of the applicant sustained burn injuries. It is the case of the applicant that immediately upon happening of the occurrence, the victim was taken to the Medical College, Jhansi where she was administered first aid and thereafter, she was referred to BIMR Hospital, Gwalior. Accordingly, the victim was admitted at BIMR Hospital, Gwalior. The victim underwent treatment at the aforesaid hospital from 26.06.2018 to 28.06.2018. Subsequently, the victim was discharged from the aforesaid Hospital but again she was admitted at Ayushman Hospital, Gwalior on 30.06.2018. During this interregnum, neither the statement of the victim was recorded nor the victim gave any dying declaration. Ultimately, victim succumbed to her injuries on 30.06.2018 while she was undergoing treatment at the Ayushman Hospital, Gwalior. The information regarding the death of the victim was communicated to the concerned police station by the ward boy of Ayushman Hospital, Gwalior, namely, Vijay Kumar. Accordingly, the inquest of the body of the deceased was conducted on 30.06.2018 on the aforesaid information. In the opinion of the Panch witnesses, no definite opinion could be given regarding the nature of death of the deceased. The first information report in respect of the aforesaid incident was lodged on 30.06.2018, i.e. after five days of the occurrence, by the brother of the deceased, namely, Saryu Prasad Kushwaha, which came to be registered as Case Crime No. 0062 of 2018, under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Samthar District-Jhansi.
In the aforesaid F.I.R., five persons, namely, Madhav @ Madhu- husband, Arjun Kushwaha- father-in-law, Smt. Watee- mother-in- law, Sanju Kushwaha- Jeth and Smt. Kusma-Jethani of the deceased were nominated as named accused. The post-mortem of the body of the deceased was conducted on 30.06.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the death of the deceased was on account of cardio respiratory failure as a result of ante-mortem burn injuries sustained by the deceased. The Police upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. has submitted a charge-sheet dated 01.09.2018 only against the husband and the father-in-law (the applicant herein) of the deceased. Three of the other named accused have been excluded. Upon submission of the aforesaid charge-sheet, cognizance has been taken by the court concerned. Accordingly, the case was committed to the Court of Session. Consequently, Session Trial No. 206 of 2018 under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Samthar, District-Jhansi came to be registered in the Court Additional Sessions Judge/F.T.C. (OWA), Jhansi.
Learned counsel for the applicant submits that the applicant is the father-in-law of the deceased. The applicant is an old man, aged about 66 years. The applicant is in jail since 04.07.2018. Though the applicant is a charge-sheeted accused yet the applicant is prima-facie innocent. The applicant has no criminal antecedents to his credit except the present one. It is next contended that the wife of the applicant, i.e. the mother-in-law of the deceased is a cancer patient. This statement of fact has categorically been stated in paragraph 19 of the affidavit filed in support of the bail application, which has not been disputed by the learned A.G.A.. It is next submitted that the occurrence has taken place after six years and four months from the date of marriage of the son of the applicant and from the wedlock of son of the applicant and the deceased, a grand son has been born, who is aged about three years. In the aforesaid circumstances, it is thus urged that the death of the deceased is accidental and not homicidal. On the aforesaid factual premise, it is thus submitted that the present applicant being the father-in-law of the deceased is liable to be enlarged on bail.
Per contra, the learned AGA has opposed the prayer for bail. He submits that the applicant is a charge-sheeted accused and since the applicant has been charge-sheeted under Section 304B I.P.C., the presumption is available to the prosecution. However, the learned A.G.A. could dispute the factual as well as legal submissions made by the learned counsel for the applicant.
Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon consideration of the evidence on record as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail. Accordingly, the bail application of the applicant is allowed.
Let the applicant-Arjun Kushwaha 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 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 sufficient 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 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.
(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 :- 28.11.2018/YK