Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41760 of 2018 Applicant :- Deepak Saini Opposite Party :- State Of U.P.
Counsel for Applicant :- Ram Kumar Counsel for Opposite Party :- G.A.,Rajesh Pachauri
Hon'ble Rajeev Misra,J.
Mr. Pankaj Kumar Shukla, Advocate has put in appearance on behalf of the applicant by filing his Parcha in Court today which is taken on record.
Heard Mr. Pankaj Kumar Shukla and Mr. Ram Kumar, the learned counsel for the applicants, the learned A.G.A. for the State and Mr. Rajesh Pachauri, the learned counsel for the complainant.
Perused the record.
This application for bail has been filed by the applicant Deepak Saini for seeking his enlargement on bail in S.T. No. 182 of 2018 (State Versus Goklesh & Others), arising out of Case Crime No. 696 of 2018 under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station Govind Nagar, District Mathura pending in the court of Additional Sessions Judge, F.T.C.-I, Mathura, during the pendency of the trial.
It transpires from the record that the marriage of the applicant was solemnized with Neelam on 19th April, 2012 in accordance with the Hindu Rites and Customs. From the aforesaid wedlock of the applicant with Neelam, two children, namely, a daughter Parul and a son Nitin are said to be born. Both are said to be minors as they are said to be aged about 6 years and 3 years respectively on date. After expiry of a period of five years and six months from the date of marriage of the applicant, an unfortunate incident occurred on 19th October, 2017, in which the wife of the applicant died as she committed suicide by hanging herself. It is the case of the applicant that immediately information of the aforesaid incident was sent to the family of the deceased. However, the inquest of the body of the deceased was performed on 19th October, 2017 not on the information given by the present applicant nor any of his family members but on the information given by the father of the deceased, namely, Anand Swaroop. In the opinion of the Panch witnesses, the death of the deceased was said to be homicidal. The post-mortem of the body of the deceased was conducted on 19th October, 2017. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased was Asphyxia as a result of ante-mortem hanging. Apart from the ligature mark, one abrasion was also found on the body of the deceased. A first information report dated 19th October, 2017 was lodged by the father of the deceased, namely, Anand Swaroop, which was registered as Case Crime No. 0696 of 2018 under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station Govind Nagar, District Mathura. In the aforesaid first information report, six persons, namely, Goklesh-father-in-law, Rajendra-brother-in- law, Deepak-husband, Hemu-brother-in-law, Smt. Malti Devi-mother-in-law and Smt. Ratan Devi-Grand mother-in-law of the deceased were nominated as the named accused. 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 18th January, 2018 against three of the named accused, namely, father-in-law, mother-in-law and the husband i.e the applicant herein. The other three named accused were excluded.
Learned counsel for the applicant submits that during the interregnum, all other co-accused have been enlarged on bail. Upon submission of the aforesaid charge-sheet dated 18th January, 2018, cognizance has been taken by the court concerned vide Cognizance Taking Order dated 20th January, 2018. Thereafter, the case has been committed to the Court of Sessions. Accordingly, S.T. No. 182 of 2018 (State Versus Goklesh & Others) came to be registered. The same is said to be pending in the Court of Additional Sessions Judge, F.T.C.-I, Mathura. According to the learned counsel for the applicant, the charges have been framed and trial is at the stage of prosecution evidence.
Learned counsel for the applicant submits that though the applicant is the husband deceased but he is innocent. The applicant has no criminal antecedents to his credit except the present one. The applicant is in jail since 25th October, 2017. As such the applicant has undergone more than one year of incarceration. It is next contended by the learned counsel for the applicant that from the wedlock of the applicant with the deceased, two children, namely, a daughter Parul and a son Nitin are said to be born. Both are said to be minors as they are said to be aged about 5 years and 2 years respectively on the date of occurrence. Looking at the precarious condition of the applicant, it is impossible to believe that the present applicant shall commit the alleged criminality for demand of dowry. It is further submitted that the allegations made in the first information report regarding demand of dowry are wholly false and concocted. It is further averred in the first information report that prior to the occurrence, conciliation was held with the help of certain respected members of the society. However, the said recital contained in the first information report stands demolished by the statements of the persons, who are said to have conducted the conciliation proceedings as is evident from their statements, which are on record at page 49 of the paper book. The learned counsel for the applicant next contends that the prosecution story as unfolded in the first information report does not stand corroborated with the statement of the mother of the deceased, which has been recorded under Section 161 Cr.P.C. In support of the aforesaid submission, the learned counsel for the applicant has referred to the statement of the mother, photo copy of which is on record at page 45 of the paper book. On the aforesaid factual premise, it is, thus, urged by the learned counsel for the applicant that even through the applicant is the husband of the deceased and a charge-sheeted accused, he is liable to be enlarged on bail.
Per contra, the learned A.G.A. for the State and the learned counsel for the complainant have opposed the prayer for bail of the applicant. They submit that the applicant is the husband of the deceased and also a charge-sheeted accused. As such presumption is available to the prosecution. The applicant has failed to discharge the burden, which is required to be discharged in respect of an offence under Section 304- B I.P.C. However, the learned A.G.A. and the learned counsel for the complainant could not dispute the factual submissions raised by Mr. Pankaj Kumar Shukla, the learned counsel for the applicant.
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.
Let the applicant Deepak Saini 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/SHE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER 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/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/HER 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/her 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.
(Rajeev Misra, J.) Order Date :- 29.11.2018 Sushil/-