Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45420 of 2018 Applicant :- Devendra Opposite Party :- State Of U.P.
Counsel for Applicant :- Upendra Upadhyay Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Upendra Upadhyay, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Anand Pal, seeking his enlargement on bail in Case Crime No. 302 of 2018 under Section 306 IPC, P.S. Patiyali, District Kasganj during the pendency of the trial.
From the record, it appears that the marriage of the applicant was solemnized with Bhuri in the year 2007. From the aforesaid wedlock, two children are said to be born namely, a girl Muskan and a boy Vishnu. They are said to be minors as they are aged about 8 years and 1 year respectively. After the expiry of a period of more than 10 years from the date of marriage of the applicant, an unfortunate incident occurred on 21.8.2018, in which the wife of the present applicant died as she committed suicide by hanging herself. The inquest of the body of the deceased was conducted on 22.8.2018 not on the information of the applicant or any of his family members but on the information given by Shyam Singh the brother of the deceased. In the opinion of the Panch witnesses, no definite opinion could be given regarding the nature of death of the deceased.
The F.I.R. in respect of the aforesaid incident was lodged on 22.8.2018 by the brother of the deceased, which was registered as Case Crime No. 302 of 2018 under Section 306 IPC, P.S. Patiyali, District Kasganj. In the aforesaid F.I.R., four persons namely, Devendra (husband), Surajbhan (father-in-law), Versana (bua of the husband of the deceased), Uday Veer Singh (fufa of the husband of the deceased) of the deceased were nominated as the named accused. The post mortem of the body of the deceased was conducted on 22.8.2018. 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 anti mortem hanging. Except for the ligature mark, no other external ante-mortem injury was found on the body of the deceased. The Police upon completion of the statutory investigation of the aforesaid case crime number, submitted a charge-sheet dated 12.8.2018 only against the applicant. Rest of the named accused have been excluded. What has happened subsequent to the submission of the charge sheet dated 12.8.2018, has not been detailed in the affidavit accompanying the bail application nor the same could be detailed by the learned counsel for the applicant at the time of hearing of the present bail application.
Learned counsel for the applicant submits that the applicant is the husband of the deceased but he is innocent. The applicant is in jail since 6.9.2018. The applicant has no criminal antecedents to his credit except the present one. It is next submitted that the proof of charge under Section 306 IPC is subject to trial evidence. There is no evidence up to this stage on the basis of which it can be said that the present applicant has aided, conspired or instigated in the commission of the alleged crime. As such, there is no abetment on the part of the present applicant. Learned counsel for the applicant submitted that looking at the precarious family conditions of the applicant, as the applicant has been blessed with two children who are still minor, it cannot be presumed by any stretch of imagination that the applicant shall abet in the commission of crime by puting the life of his wife in jeopardy. As such, it is urged that the present applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He next submits that the applicant is a charge sheeted accused. Referring to the statement of the daughter of the applicant, copy of which is at page 42 of the affidavit, learned A.G.A. submits that the present applicant is the cause behind the occurrence. As such, it is submitted that the applicant does not deserve any sympathy of this Court. He, therefore, submits that the bail application of the applicant is liable to be rejected.
In rejoinder learned counsel for the applicant has submitted that the habit of the present applicant may be the cause behind the occurrence but that by itself will not amount to abetment in terms of section 306 IPC. There is no evidence on the record up to this stage to show that the applicant has abetted in the commission of crime.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail. Accordingly, the bail application is allowed.
Let the applicant Devendra, 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.
Order Date :- 28.11.2018 Arshad