Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 45564 of 2018 Applicant :- Khushi@Rubi Opposite Party :- State Of U.P.
Counsel for Applicant :- Lalit Kumar Shukla,Rakesh Dubey Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Dileep Kumar, the learned counsel assisted by Mr. Lalit Kumar Shukla, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Anoop Trivedi along with Mr. Rohit Shukla, who have filed their vakalatnama on behalf of the complainant in Court today which are taken on record.
This application for bail has been filed by the applicant- Khushi@Rubi seeking her enlargement on bail in Case Crime No. 1131 of 2018, under Section 323, 304B, 498A I.P.C. read with section 3/4 of Dowry Prohibition Act, Police Station- Highway, District-Mathura, during the pendency of the trial.
It transpires from the record that the marriage of the brother of the applicant namely Raj Kapoor was solemnized with Geeta on 22.4.2015 in accordance with the Hindu Rites and Customs. However, the couple did not have a successful marriage as no issue was born to them. After the expiry of a period of three years and 3 months from the date of the marriage of the brother of the applicant, an unfortunate incident occurred on 26.7.2018, in which the bhabhi of the present applicant died as she committed suicide by hanging herself. The inquest of the body of the deceased was conducted on 27.7.2018 not on the information given by the present applicant or any of her family members, but on the information given by Hemandra Kumar, brother of the deceased. 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 27.7.2018. 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 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 day of the occurrence i.e. on 27.7.2017 by Hemdra Kumar, the brother of the deceased, which came to be registered as Case Crime No. 1131 of 2018, under Section 323, 304B, 498A I.P.C. read with section 3/4 of Dowry Prohibition Act, Police Station-Highway, District-Mathura.
In the aforesaid F.I.R., seven persons, namely, Raj Kapoor (the husband), Smt. Vimla Devi (the mother-in-law), Priti, married nand, Kushi and Urvashi (the unmarried nands), Brij Bihari, (the uncle-in-law) and Bhajan Lal, the grand father-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 13.9.2018 against the five named accused. However, two of the named accused namely Brij Bihari and Bhajan Lal were excluded. What has happened subsequent to the submission of the charge sheet dated 13.9. 2018 has neither been detailed in the affidavit accompanying the present bail application nor the same has been detailed at the time of hearing of the present bail application by any of the counsel.
Learned counsel for the applicant Mr. Dileep Kumar submits that the applicant is the unmarried nand of the deceased, but she is innocent. The applicant is in Jail since 28.8.2018. The applicant has no criminal antecedents to her 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 as is evident from the post mortem report. It is next urged that general and omnibus allegations regarding demand of dowry have been made in the F.I.R. However, the applicant cannot be said to be beneficiary of the alleged demand of dowry. It is lastly urged that the deceased was married on 22.4.2015, but even after expiry of a period of three years and the lady could not conceive. On account of frustration originating because of the aforesaid fact, it appears that the deceased committed suicide. It is thus urged that since the present applicant is the unmarried nand of the deceased she is liable to be enlarged on bail.
Per contra, the learned counsel for the complainant Mr. Anoop Trivedi and the learned AGA have vehemently opposed the prayer for bail. They submit that the applicant is a charge sheeted accused under section 304 B IPC and therefore, presumption is available to the prosecution. It is next urged that the case in hand is different from the case of other accused except Urvashi, as from the material collected by the Investigating Officer during the course of investigation as is apparent from Parcha No. 3 of the Case Diary, it is apparent that the deceased was forced to commit suicide. The recording of entire incident by the husband of the deceased clearly goes to show the mens rea on the part of the present applicant also and also the failure on the part of the present applicant to save the deceased. On the aforesaid factual premise, it is urged that the bail application of the present applicant is liable to be rejected.
In rejoinder, learned counsel for the applicant submits that it is an undisputed fact that the applicant is the unmarried nand of the deceased and looking into the nature of the relationship, the helplessness of the applicant can better be imagined. Rather than elaborating the same, it is urged that the case of the present applicant is distinguishable from the other co-accused except Urvashi, who is similarly placed like the applicant. Therefore,, the applicant is liable to be enlarged on bail.
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-Khushi@Rubi 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.
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 :- 30.11.2018 HSM