Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45561 of 2018 Applicant :- Jitendra Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Vijay Bahadur Shivhare Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Vijay Bahadur Shivhare, the learned counsel for the applicant and the learned A.G.A. for the State.
This application for bail has been filed by the applicant-Jitendra Kumar seeking his enlargement on bail in Case Crime No. 201 of 2018, under Section 306 I.P.C., Police Station-Rath, District- Hamirpur, during the pendency of the trial.
It transpires from the record that the marriage of the applicant was solemnized with Kiran on 11.6.2010 in accordance with the Hindu Rites and Customs. From the aforesaid wedlock, two children namely a daughter Palak and a son Samar are said to be born. Both the children are minors as they are aged about 4 years and approximately 2 years respectively. After the expiry of a period of seven years and 11 months from the date of the marriage of the applicant, an unfortunate incident occurred in the night of 25/26.5.2018, in which the wife of the applicant namely Kiran died as she committed suicide by hanging herself. The inquest of the body of the deceased was conducted on 26.5.2018 not on the information given by the present applicant, but on the information given by Ram Prakash, the father of the present applicant. According to the Panch witnesses, the death of the deceased was characterized as suicidal. The post-mortem of the body of the deceased was conducted on 26.5.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of the death of the deceased is asphyxia as a result of ante-mortem hanging. 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 the next date i.e. on 30.09.2017 by the father of the deceased namely Bhagwan Das, which came to be registered as Case Crime No. 201 of 2018, under Section 306 I.P.C., Police Station-Rath, District- Hamirpur.
In the aforesaid F.I.R., three persons, namely, Jitendra Kumar (the husband), Ram Prakash (the father-in-law) and Smt. Kesar Ahiwar, the mother-in-law of deceased were nominated as 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 14.9.2018 against the husband, the present applicant and one Kamlesh Kumari. Upon submission of the charge-sheet, cognizance was taken by the court concerned vide cognizance taking order dated 21.9.2018. What has happened subsequent to the passing of the Cognizance Taking Order dated 23.12. 2018 has neither been detailed in the affidavit accompanying the present bail application nor the same has been disclosed 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 20.8.2018. The applicant has no criminal antecedents to his credit except the present one. It is next submitted by the learned counsel for the applicant that the deceased was a short tempered lady and has taken the extreme step of committing suicide by hanging himself. From the wedlock of the applicant and the deceased, two children namely Palak a daughter and a son Samar are said to be born. Both the children are minors as they are aged about 4 years and approximately 2 years respectively. In view of the precarious conditions of the family of the applicant it is impossible to believe that the present applicant shall abet in the commission of the alleged crime. It is next submitted that the proof of the charge under section 306 IPC is subject to trial evidence. However, upto this stage, there is no such evidence on the basis of which it can be said that the 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. It is, therefore, urged that the present applicant is liable to be enlarged on bail.
Per contra, the learned AGA has opposed the prayer for bail. He submits that the applicant is the husband of the deceased and also a charge sheeted accused. On the basis of the material collected by the Investigating Officer, the present applicant, who is the husband and the lady namely Kamlesh Kumari with whom the applicant is said to have illicit relationship have been charged sheeted. The deceased has committed suicide on account of the aforesaid fact. As such the bail application of the applicant is liable to be rejected.
In rejoinder, learned counsel for the applicant submits that the plea raised by the learned A.G.A. can be said to be the cause behind the occurrence, but will certainly not amount to the abetment in terms of section 306 IPC.
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-Jitendra 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