Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 44252 of 2018 Applicant :- Gaurav Opposite Party :- State Of U.P.
Counsel for Applicant :- Vikas Tiwari,Alok Sharma Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. G. S. Hajela, Advocate assisted by Mr. Amit Kumar Chauhan, the learned counsel for the applicant, learned A.G.A. for the State and Mr. Vijay Kumar Misra, Advocate, who has put in appearance on behalf of the complainant by filing his Vakalatnama in Court today, which is taken on record.
2. Supplementary affidavit filed on behalf of the applicant today in Court, is taken on record.
3. This application for bail has been filed by the applicant-Gaurav seeking his enlargement on bail in Session Trial No. 363 of 2017 (State Vs. Om Nandan and others) arising out of Case Crime No. 1480 of 2018, under Sections 498A, 304B I.P.C. and Sections 3/4 D. P. Act, P.S.-Kotwali City, District-Etah during the pendency of the above mentioned trial, which is now said to be pending in the Court of Additional Sessions Judge, Etah.
4. Perused the record.
5. It transpires from the record that the marriage of the applicant was solemnized with Renu on 06.05.2013 in accordance with the Hindu Rites and Customs. However, after the expiry of a period of three years and six months from the date of marriage of the applicant, an unfortunate incident occurred on 23.11.2016, in which wife of the applicant committed suicide by hanging herself. The inquest of the deceased was conducted on the next day, i.e. on 24.11.2016 not on the information given by the present applicant or any of his family members but on the information given by the father of the deceased, namely, Dhirendra Kumar Sharma. In the opinion of the Panch witnesses, the death of the deceased was characterised as suicidal. It may be noted there that upon the information about the death of the deceased having been received by the concerned Police Station, the Police arrived at the spot and recovered the dead body of the deceased from a room after breaking its door. The post-mortem of the body of the deceased was conducted on 24.11.2016. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of death of the deceased is asphyxia as a result of ante-mortem hanging. However, except for the ligature mark, no other external ante-mortem injury was found on the body of the deceased. The first information report in respect of the aforesaid incident was lodged on 23.11.2016 by the father of the deceased, namely, Dhirendra Kumar Sharma, which came to be registered as Case Crime No. 1480 of 2018, under Sections 498A, 304B I.P.C. and Sections 3/4 D. P. Act, P.S.-Kotwali City, District-Etah.
6. In the aforesaid F.I.R., five persons, namely, Om Nandan-father-in-law, Smt. Shakuntla Devi-mother-in-law, Gaurav Upadhyay-husband, Shivam Upadhyay-Devar and Neha Upadhyaya-Nanad 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 dated 25.01.2017 only against three of the named accused, namely, husband, father-in-law and mother-in-law of the deceased. Two of the named accused, namely, Devar and Nanad of the deceased were excluded. Upon submission of the aforesaid charge-sheet, cognizance was taken by the court concerned vide cognizance taking order dated 25.01.2017. Consequently, the case was committed to the Court of Sessions. Accordingly, Session Trial No. 363 of 2017 (State Vs. Om Nandan and others) came to be registered in the Court of Additional Sessions Judge, Court no. 14, Etah, which is now said to be pending. According to the learned counsel for the parties, the trial has not yet commenced.
7. Mr. G. S. Hajela, 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 07.12.2016, as such, he has undergone more than two years of incarceration. The applicant has no criminal antecedents to his credit except the present one. Absence of any external ante-mortem injury on the body of the deceased speaks of the bonafide of the present applicant. It is then contended that the deceased was a short tempered lady and has taken the extreme step of committing suicide by hanging herself. It is next submitted that the deceased was not keeping well for the last three years and twice her pregnancy was terminated. It is on account of the aforesaid frustration that the deceased has committed suicide by hanging herself. On the aforesaid factual premise, it is thus urged that the present applicant, though he is the husband of the deceased, is liable to be enlarged on bail.
8. Per contra, the learned AGA and the learned counsel appearing for the complainant have opposed the prayer for bail. They submit that the deceased was a young lady aged about 30 years and she has died within 3 years and six months from the date of her marriage at her matrimonial home. Thus, the death of the deceased is highly unnatural. It is then submitted that the applicant is not only a named accused but also a charge- sheeted accused under Sections 498A, 304B I.P.C. and Sections 3/4 D. P. Act. As such presumption is available to the prosecution. Consequently, the burden is upon the applicant to explain the manner of occurrence in terms of Section 106 of the Evidence Act and also the cause behind the occurrence in terms of Section 113B of the Evidence Act. However, upto this stage, the applicant has failed to discharge the said burden. On the aforesaid factual premise, they submit that the applicant is not entitled to any sympathy of this Court. The bail application of the applicant is thus liable to be rejected.
9. Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the material brought on record and the complicity of the applicant but without expressing any opinion on merits of the case, I do not find any good ground to allow the present application. Consequently, the bail application of the applicant is hereby rejected.
10. However, at this stage, it is expected from the learned trial court to gear up the trial and make necessary endeavour to conclude the same within one year provided the applicant would render all necessary co- operation in early conclusion of the trial.
11. Office is directed to communicate the copy of this order forthwith to concerned court for necessary compliance.
Order Date :- 19.12.2018 YK