Court No. - 64
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35447 of 2020
Applicant :- Gaurav Gautam
Opposite Party :- State of U.P.
Counsel for Applicant :- Narendra Singh Chahar
Counsel for Opposite Party :- G.A.
Hon'ble Rahul Chaturvedi,J.
Supplementary affidavit filed by learned counsel for the applicant today in the Court is taken on record.
Heard Sri Narendra Singh Chahar, learned counsel for the applicant as well as Sri Faraz Qazmi, learned Brief Holder for the State and perused the record.
By means of this application, the applicant who is involved in case crime no.823 of 2019, under Section 498A, 304B IPC and Section 3/4 of D.P. Act, Police Station-New Agra, District-Agra is seeking enlargement on bail during the trial.
To start with, learned counsel for the applicant has drawn the attention of the Court to the deponent of the affidavit in support of the bail application who is none other than Pravin Gautam, elder sister of the deceased Gunjan Gautam and sister-in-law of the applicant. By this, learned counsel for the applicant argued that deceased's elder sister is not supporting the prosecution case and that is why, she has given an affidavit in favour of the applicant. Secondly, the informant is Madan Gautam, father of the deceased who has lodged the present FIR against the applicant Gaurav Gautam, his elder brother Vivek Gautam, Deepesh@Deepu(Devar), Smt Bholi, mother-in-law attributing general role of killing his daughter by pressing her neck on 04.11.2019 at 3 pm. As per version of the FIR, informant's daughter Pravin Gautam and Gunjan Gautam got married with two real brothers namely Vivek Gautam and Gaurav Gautam, sons of Tarun Gautam on 17.02.2016 and soon after the marriage, all the family members were not satisfied by the dowry given during the marriage and on this score, there was harassment and torture of her younger daughter. Not only this, husband of the deceased, on a regular basis in the stage of intoxication, used to maltreat and assault her daughter and on the fateful day, all the four named accused persons killed her daughter by pressing her neck.
It is contended by learned counsel for the applicant that from the perusal of the FIR, the only allegation is that in-laws were not satisfied by the dowry given during the marriage and the applicant in the stage of intoxication, used to maltreat her wife. There is no whisper with regard to the demand of any additional dowry in the FIR. The post mortem report annexed as Annexure-3 to the application also reveals that the deceased has died on account of hanging as there is singular ligature mark of 32 cm x 2 cm around her neck with a gap of 4 cm which was obliquely placed and according to the opinion of the doctor, deceased died on account of asphyxia as a result of hanging. Except the aforesaid, there was no mark of injury over the person of the deceased.
The next contention is that during the course of investigation, the police has recorded the statement of Smt. Meena Kumari, wife of the informant, Shiv Charan Gautam s/o Chhinga Ram and the most natural witness, elder sister of the deceased Ms. Pravin Gautam wife of Vivek Gautam.
I have perused the statement of all the witnesses and the affidavit given by the informant addressed to S.S.P. Agra dated 19.11.2019 annexed as Annexure-5 to the application.
I have opportunity to go through the statements and contents of the affidavit. Smt. Meena Kumari in her 161 Cr.P.C. statement have stated that the two real sisters got married with two real brothers namely Vivek Gautam and Gaurav Gautam and her counter part has never made any complaint with regard to the dowry nor they have ever demanded any additional dowry. On the contrary, her daughter used to praise their respective husband and in-laws. The younger daughter Gunjan often used to make a complaint that her husband is in bad habit of drinking and in the stage of intoxication, he used to maltreat her. On this account, his father Tarun Gautam has separated him and has given separate accommodation at the roof top. It was further mentioned in the 161 Cr.P.C. that on account of this bad habit and the treatment given by her husband to her, she has committed suicide by hanging herself. After coming to know, in a fit of anger, her husband lost his mental balance and lodged the FIR. But fact remains that there was no demand of any additional dowry. Smt. Pravin Gautam, elder sister of the deceased who is most natural witness of the incident, in her statement states that her in-laws were satisfied by the dowry and gifts etc given in the marriage and never harassed or tortured her on account of any dowry. Neither she nor her sister ever made any complaint with regard to the treatment advanced by them towards both the sisters. However, since, his brother-in- law(husband of Gunjan Gautam) was sitting idle having no work and in addition to above, he was in a bad habit of drinking then he often used to ask his wife Gunjan to bring some money from her parents. The statement of the natural witness Ms. Pravinn Gautam is quoted hereinbelow :-
"ममेररी शशादरी वविविमेक कमे सशाथ एविवं गगवंजन ककी शशादरी गगौरवि कमे सशाथ हहई थरी . शशादरी कमे समय ममेरमे वपितशा नमे अपिनरी सशामरयर कमे अनगसशार दशान दहमेज़ वदयशा थशा . वदए गए दशान दहमेज़ समे ममेरमे पिवत शरी वविविमेक , सशास शरीमतरी भभूररी दमेविरी वि ससगर स्विगर्गीय शरी तरुण गगौतम वि दमेविर गगौतम सवंतगष्ट थमे . उनकमे दशारशा मगझमे वि ममेररी बवहन गजन कको कभरी पिरशशान नहहीं वकयशा गयशा न हरी उन्हहोंनमे दहमेज़ ककी मशागवं ककी थरी . ममेररी छकोटरी बहन गगवंजन कशा पिवत कग छ कशाम नहहीं करतशा थशा तथशा ममेररी बवहन गजन समे कहतशा थशा ककी अपिनमे घर समे पिपैसमे लशा. इसरी कशारन उसमे पिरशशान करतशा थशा x x x x x x x x x x x x x x x x x x वदनशावंक ०४.११.२०१९ ककी दकोपिहर मम ममेररी बवहन गगवंजन वि उनकशा पिवत गगौरवि छत पिर बनमे कमरमे मम जहशा विह दकोनहों रहतमे थमे , मम चलमे गए थमे जहशा दकोनहों कमे मध्य झगड़शा हहआ थशा. उनकमे बशाद गगौरवि खशानशा खशा कर दकोपिहर मम हरी घर समे बशाहर चलशा गयशा थशा. कररीब तरीन बजमे वदन मम अपिनरी बहन कमे पिशास छत पिर गयरी तको दमेखशा ककी विह पिवंखमे मम रस्सरी बशावंध कर फवं दमे पिर लटककी हहई थरी ''
On this, Sri Faraz Qazami, learned Brief Holder on behalf of State, has strenuously argued that since there was a demand of money by the applicant from her wife, therefore, it would amount to "demand to dowry" and the deceased died within seven years of marriage under the unnatural and mysterious circumstances and, therefore, he does not deserve to be released on bail.
Taking into account the averments to be true on the face value at this stage, no doubt there is demand of money and she died under the unnatural circumstances, in the portion occupied by the husband, it is desirable to examine that this demand of money by the applicant from his wife would fall within the definition of dowry or not.
Section 2 of the Dowry Prohibition Act defines the word 'dowry' :-
"Definition of `dowry'--
In this act, 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly :
a) by one party to a marriage to the other party to the marriage; or
b) by the parents of either party to a marriage or by any other person, to either party to the marriage or to any other person;
at or before or any time after the marriage in connection with the marriage of said parties but does not include dower or mahr in the case of persons to whom the Muslim Personal Law (Shariat) applies."
Thus, assessing the alleged demand in the light of definition of dowry, it clearly indicates that this demand of money is not at the time of marriage or after the marriage. Such demand of money should be either as a condition precedent to the marriage or if agreed between the parties at the time of marriage. But its ambit should not be enlarged to such an extent that the husband or in-laws cannot ask money from their counter-parts for all times to come for any other purpose. Dowry must relate to the marriage alone. As argued that the husband was sitting leisurely with no work, then he has asked his wife to demand some money so that he may start his work. Thus, under the circumstances, such demand would not fall within the definition of dowry. Learned counsel for the applicant has relied upon the judgment of Hon'ble the Apex Court in the case of Appasaheb And Anr vs State Of Maharashtra reported in (2007) 9 SCC 721 in which it was held that the demand of money on account of some financial stringency of meeting some urgent domestic expenses or purchasing some manoeuvre would not fall within the definition of Section 2 of D.P. Act and therefore, the basic ingredients of Section 304-B IPC would not be made applicable.
It is further argued by learned counsel for the applicant that during the course of investigation, the informant has himself given an application addressed to S.S.P. dated 19.11.2019 in which he has somersaulted by 180º from the prosecution story. But ignoring this affidavit, the police continued to investigate and submitted the report under section 173(2) Cr.P.C. against all the named accused persons and learned Sessions Judge too on 13.07.2020 rejected the bail application no.1095 of 2020 on the wrong premises. Taking into account the totality of the circumstances and rival submissions, it seems that the applicant has succeeded in making out the fit case for bail. The applicant is languishing in jail since 11.11.2019.
Keeping in view the nature of the offence, evidence, complicity of the accused and submissions of learned counsel for the parties, I am of the view that the applicant has made out a case for bail.
Let the applicant, Gaurav Gautam, who is involved in case crime no.823 of 2019, under Section 498A, 304B IPC and Section 3/4 of D.P. Act, Police Station-New Agra, District-Agra, be released on bail on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned subject to following conditions. Further, before issuing the release order, the sureties be verified.
(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 IPC.
(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 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 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.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.
Since the bail application has been decided under extra-ordinary circumstances, thus in the interest of justice following additional conditions are being imposed just to facilitate the applicant to be released on bail forthwith. Needless to mention that these additional conditions are imposed to cope with emergent condition-:
1. The applicant shall be enlarged on bail on execution of personal bond without sureties till normal functioning of the courts is restored. The accused will furnish sureties to the satisfaction of the court below within a month after normal functioning of the courts are restored.
2. The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
3. The computer generated copy of such order shall be self attested by the counsel of the party concerned.
4. 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.
However, observations made by this Court shall not affect the judicial instinct of learned Trial Court who shall proceed with Sessions Trial and would make necessary endeavour to conclude the same as expeditiously as possible.
Order Date :- 6.1.2021 Sumit S