Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45819 of 2018 Applicant :- Bhupendra Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Dhirendra Kumar Srivastava,Sri Kamal Krishna, Senior Advocate Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Kamal Krishna, learned Senior counsel assisted by Mr. Dhirendra Kumar Srivastava, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Neeraj Kumar Chaurasia holding brief of Mr. Bipin Kumar, who has filed his vakalatnama on behalf of the complainant in Court today, which is taken on record.
2. This application for bail has been filed by the applicant- Bhupendra Kumar seeking his enlargement on bail in Case Crime No. 81 of 2018, under Sections 498-A, 304-B I.P.C. read with Sections 3/4 D.P. Act, Police Station-Shahabganj, District- Chandauli during the pendency of the trial.
3. It transpires from the record that the marriage of the applicant was solemnized with Soni Singh on 04.03.2016 in accordance with the Hindu Rites and Customs. From the aforesaid wedlock the couple was blessed with a child namely Aniket, who is said to be born n 17.8.2017. Just after the expiry of a period of one year and five months from the date of the marriage of the applicant, an unfortunate incident occurred on 22.08.2018, in which the wife of the applicant died as she committed suicide by hanging herself. The inquest of the deceased was conducted on 23.8.2018 on the information given by Chandrabhan Singh, vide application dated 23.8.2018 at the concerned police station, which was entered in the General Diary of the Police Station, vide G.D. entry No. 23 of 23.8.2018. In the opinion of the Panch witnesses, the death of the deceased was characterized as suicidal. The post-mortem of the body of the deceased was conducted on 23.8.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of the death of the deceased was on account of asphyxia as a result of ante-mortem hanging. Apart from the ligature mark, the doctor further found one contusion on the forehead of the deceased. The delayed first information report in respect of the aforesaid incident was lodged on 30.08.2018 i.e. after eight days of the occurrence by Chandrabhan Singh, the father of the deceased, which came to be registered as Case Crime No. 81 of 2018, under Sections 498-A, 304-B I.P.C. read with Sections 3/4 D.P. Act, Police Station-Shahabganj, District- Chandauli.
4. In the aforesaid F.I.R., four persons, namely, Bhupendra Kumar Singh (the husband), Upendra Kumar Singh (the jeth), Ambalika Devi, (the married nand) and Neelu (the unmarried nand) of the deceased were nominated as named accused. The investigation pursuant to the aforesaid F.I.R. is still said to be continuing.
5. Mr. Kamal Krishna, learned Senior counsel assisted by Mr. Dhirendra Kumar Srivastava, learned counsel for the applicant submits that though the applicant is the husband of the deceased, but he is innocent.The applicant is in Jail since 04.09.2018. The applicant has no criminal antecedents to his credit except the present one. It is next submitted that the occurrence has taken place on 22.8.2018 and the information of the same was communicated by the father of the deceased to the Police Station concerned, vide application dated 23.8.2018. This application was entered in the General Diary of the Police Station, vide G.D. entry No. 23 of 23.8.2018. The said application has been brought on the record of the present bail application and is at page 34 of the paper book. Inviting attention of the Court to the aforesaid application, it is urged that in this application there is no allegation that the death of the deceased has been committed on account of non fulfilment of the demand of dowry. It is then contended that the applicant was present at the time of the inquest, which goes to show the bona fide of the applicant. It is the case of the applicant that upon the happening of the occurrence, the deceased was immediately rushed to the hospital, but she succumbed to her injuries on her way. Apart from the above, it is also urged that from the wedlock of the applicant and the deceased a son namely Aniket was born on 17.8.2017, who was just a year old on the date of occurrence. In view of the aforesaid precarious family condition of the applicant, it is even impossible to believe that the applicant shall commit the alleged crime or abet in the commission of the alleged crime. On the cumulative strength of the aforesaid submissions, it is thus alleged that the applicant is prima facie innocent and hence liable to be enlarged on bail.
6. Per contra, the learned A.G.A. and the learned counsel for the complainant have opposed the prayer for bail. They submit that the applicant is the husband of the deceased and a charge sheeted accused. The death of the deceased, who was a young girl aged about 22 years, has taken place just after 1 year and 5 months of the marriage and after giving birth to a male child, who was only a year old. As such, the death of the deceased can be said to be unnatural. It is next submitted that since the death of the deceased has taken place in the house of the present applicant before the expiry of a period of 7 years from the date of marriage of the applicant, the case is covered under section 304 B IPC and therefore, the presumption is available to the prosecution in terms of Section 113 B of the Evidence Act. Upto this stage, the applicant has not been able to discharge the said burden as to why the deceased committed suicide even when she had a small boy to care him, who was just a year old on the date of occurrence and further more. He then submits that the bail application of the present applicant is liable to rejected.
7. Keeping in view the nature of the offence, evidence, complicity of the accused, submissions of the learned counsel for the parties and without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail.
8. Let the applicant Bhupendra 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 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 :- 30.11.2018 HSM