Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 33094 of 2021 Applicant :- Avnish Kumar Opposite Party :- State of U.P.
Counsel for Applicant :- Lavkush Kumar Bhatt Counsel for Opposite Party :- G.A.
Hon'ble Samit Gopal,J.
Heard Sri Lavkush Kumar Bhatt, learned counsel for the applicant and Sri Raj Kumar Gupta, learned counsel 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- Avnish Kumar, seeking enlargement on bail during trial in connection with Case Crime No.77 of 2021, under Sections 306, 504, 506 I.P.C., registered at Police Station Kampil, District Farrukhabad.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the prosecution case as per FIR lodged on 02.04.2021 by Smt. Maharani, the mother of the deceased is that the marriage of her daughter was solemnized around two years back with Avnish Kumar. After the marriage, her daughter had an illicit relationship with Ashwani, the son of the maternal uncle of the applicant and on coming of it, her in-laws used to have enmity with her. On 21.03.2021 at the time of the festival of Holi, her daughter came to her house. On 30.3.2021, an information came to her daughter that Avnish, the applicant is ill, after which on the same day, her daughter left the house with Anuj, the son of the maternal uncle of the deceased on a motorcycle for her matrimonial house. At about 9 a.m. when they reached near Kampil crossing, Ashwani met her daughter and they both had some talks and then Anuj came back and then her daughter was enticed away. She did not reach her matrimonial house and then on asking from Anuj and his family members and stating of initiating action against them, they asked for two days time to send her daughter back, after which the applicant who is the husband of the deceased, Kuldeep, the devar of the deceased, Vineeta, the nanad of the deceased, Rajeshwar and Agresh, launched a search for her daughter and Ashwani and on 01.04.2021 at about 2 p.m., they brought her daughter in a car to her maternal house and abused the first informant and told her to keep her daughter in her home and if she goes back to her Sasural, they will kill her. The said persons also gave some poison to her daughter and said her to eat it and finish herself otherwise they will kill her. They returned back from the place and later on her daughter told the first informant that Ashwani took her to Delhi and raped her and then the other accused persons assaulted her and tortured her mentally and also physically. Her daughter consumed the said poison given by them due to the torture and harassment. It is further alleged that she was admitted in C.H.C, Kyamganj from where she was referred to Farrukhabad where during treatment she died. It is argued that the entire prosecution case is false and incorrect. On the own showing of the first informant, the deceased was a lady of bad character. She was having an extra-marital affair with the first cousin of the applicant being Ashwani after marriage, which was known to her mother and her in-laws. It is further argued that the story regarding the accused persons giving small packet of poison to the deceased to consume and finish herself is a vague allegation. There is no specification as to who had given the said poison to the deceased to consume and finish her life. Apart from Ashwani, there are five other co-accused persons named in the FIR including the applicant. General and common role has been assigned to all of the accused of giving a packet of poison to the deceased to finish her life which is stated to have been consumed by the deceased. On the own showing of the first informant, the deceased was a lady of bad character. The applicant is the husband of the deceased and has been falsely implicated. There is no specific role assigned to the applicant and even there is no overt act whatsoever. 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 is further argued that the police has submitted charge sheet after investigation and as such there is no chance of the applicant tempering with the evidence or not cooperating with investigation. It has also been pointed out that the applicant is not having any criminal history as stated in para 29 of the affidavit. The applicant is in jail since 31.05.2021.
Per contra learned counsel for the State has opposed the prayer for bail and argued that the applicant is named in the FIR. There is an allegation of the applicant and other accused persons of providing poison to the deceased which was consumed by her due to which she died as such the prayer for bail be rejected.
After hearing the counsel for the parties and perusing the record, it is apparent that common and general role is assigned to the applicant and five other co- accused persons of providing a packet of poison to the deceased to finish her life. The deceased as per prosecution case itself was having an illicit relationship with the first cousin of the applicant with whom she had gone to Delhi, the said fact was known even to the family members of the deceased. 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.
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-Avnish Kumar, 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 :- 27.9.2021 Gaurav