Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2657 of 2019 Applicant :- Kamlesha Opposite Party :- State Of U.P.
Counsel for Applicant :- Radhey Shyam Shukla,Vipul Shukla Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
1. Heard Mr. Radheyshyam Shukla, the learned counsel for the applicant and the learned A.G.A. for the State.
2. This application for bail has been filed by the applicant- Kamlesha for seeking her enlargement on bail in Case Crime No. 261 of 2018, under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Kalan, District- Shahjahanpur during the pendency of the trial.
3. It transpires from the record that the marriage of the devar of the applicant namely Amit Kumar was solemnized with Smt. Neetu on 11.05.2017. However, just after the expiry of a period of little more than one year from the date of marriage of the devar of the applicant, an unfortunate incident occurred on 02.08.2018, in which the devarani of the present applicant namely Smt. Neetu died as she committed suicide by hanging herself. The inquest of the deceased was conducted on the next day i.e. on 03.08.2018 on the information given by Gangadeen, the father-in-law of the deceased. In the opinion of the Panch witnesses, the death of the deceased was characterized as suicidal. The first information report in respect of the aforesaid incident was lodged on 03.08.2018 by Latoori Lal, the father of the deceased, which was registered as Case Crime No. 261 of 2018, under Sections 498-A, 304-B I.P.C. and Sections 3/4 D.P. Act, Police Station-Kalan, District-Shahjahanpur
4. In the aforesaid F.I.R., five persons, namely, Amit Kumar (the husband), Gangadeen, (the father-in-law), Omveer, (the jeth), wife of Omveer i.e. (the jethani) and Deepu, (the jeth) of deceased were nominated as the named accused. The post- mortem of the body of the deceased was conducted on 03.08.2018. The Doctor, who conducted the autopsy on the body of the deceased, opined that the cause of the death of the deceased was asphyxia as a result of ante-mortem hanging. Except 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 in terms of Chapter XII Cr.P.C. has submitted a charge-sheet dated 31.10.2018 against three of the named accused including the present applicant. Two of the named accused Omveer and Deepu have been excluded. What has happened subsequent to the submission of the charge sheet dated 31.10.2018 has neither been detailed in the affidavit accompaying the bail application nor the same has been disclosed by the learned counsel for the applicant at the time of hearing of the present bail application.
5. Learned counsel for the applicant submits that the applicant is the jethani of the deceased, but she is innocent. The applicant is in Jail since 17.10.2018. The applicant has no criminal antecedents to her credit except the present one. It is then submitted that the applicant is having a happy married life with her four children and they are residing separately in different house. This fact stands corroborated by the statement of the independent witnesses whose testimony has been recorded by the Investigating Officer under section 161 Cr. P. C. It is then urged that since the applicant is residing separately from the family of the deceased, the applicant has no role to play in the family affairs of the deceased. The deceased was a short tempered lady and has taken the extreme step of committing suicide by hanging herself. General and omnibus allegations have been made in the F.I.R. regarding the demand of dowry and the commission of cruelty upon the deceased for non fulfilment of dowry. Such allegations are unfounded, as the applicant was residing separately and therefore, she cannot be said to be beneficiary of the alleged demand of dowry, The husband of the deceased is already languishing in jail. There is no statement of the deceased under section 161 Cr. P. C. nor there is any suicide note recovered by the police during the course of investigation, nor there is any dying declaration of the deceased. On the aforesaid factual premise, it is urged by the learned counsel for the applicant that the applicant is liable to be enlarged on bail.
6. Per contra, the learned AGA has opposed the prayer for bail. However, he could not dispute the factual submissions urged by the learned counsel for the applicant.
7. 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.
8. Let the applicant-Kamlesha 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 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 her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure 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 her, 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 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.
9. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on 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 :- 22.1.2019 HSM