Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 49917 of 2019 Applicant :- Smt. Maheshwari Opposite Party :- State of U.P.
Counsel for Applicant :- Awadhesh Kumar Srivastava Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sri Awadhesh Kumar Srivastava, learned counsel for applicant and learned A.G.A. for State.
2. Applicant-Smt. Maheshwari, has approached this Court by way of filing the present Criminal Misc. Bail Application under Section 439 Cr.P.C. after rejection of her Bail Application vide order dated 02.08.2019, passed by Sessions Judge, Pilibhit, in Case Crime No.131 of 2019, under Sections 498A, 307, 304B I.P.C. and 3/4 Dowry Prohibition Act, Police Station Puranpur, District Pilibhit.
3. Marriage of son of applicant and deceased was solemnized about one year before the date of occurrence. It is alleged that on 24.05.2018 son of applicant had beaten his wife. The matter was settled and she was sent back to her matrimonial house. On 09.03.2019 it is alleged that applicant and husband of deceased pour kerosene oil and set her ablaze. Later on she succumbed her injuries on the same day. It was opined in the post mortem report that immediate cause of death is septicaemia shock as a result of anti mortem burn injuries. Allegedly before her death a dying declaration was recorded.
4. Learned counsel for applicant submitted that applicant is related as mother-in-law of deceased. She is living separately alongwith her younger son in the same house. She is aged about 60 years. Even in dying declaration specific role of causing death by burning was on husband of deceased. There is no specific role attributed to the applicant. It is also submitted that applicant has no criminal history and she is languishing in jail since 26.03.2019 and in case, she is released on bail, she will not misuse the liberty of bail and will cooperate in trial.
5. Learned A.G.A. appearing for State has opposed the prayer for bail and submits that it is apparent from dying declaration that applicant (mother-in-law of deceased) was present in the house and she has actively participated in the offence and finally the husband of deceased pour kerosene and set ablaze the deceased.
6(A) Law on bail is well settled that 'Bail is rule and Jail is exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as criminal antecedents of the accused.
(B) It is also well settled that the Court while considering an application for bail must not go into deep merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered. It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner.
(C) The Court should record the reasons which have weighed with the count for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D) The Court while granting bail in the case involving sexual offence against a woman should not mandate such bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others vs. State of Madhya Pradesh and another, reported in 2021 SCC Online SC 230, in this regard.
7. It is apparent from material on record, specifically from the dying declaration, that on the date of occurrence, i.e., 09.03.2019 at about 8.00 PM the husband of deceased came in drunken condition. However, on an issue of salt in food, he started assaulting his wife. During this occurrence Chachiya Sasur tried to save deceased. At that moment applicant specifically stated "Isi Dayan Ki Wajah Se Sab Kuch Ho Raha Hai". Subsequently the husband of deceased pour kerosene oil and set her ablaze. In the dying declaration she further stated that after the occurrence she ran towards her father-in-law who tried to save her and subsequently they have taken her to hospital. It is apparent that applicant, who is mother-in-law of deceased, has not only instigated the husband of deceased but has not taken any step to help the deceased while she was burning. Further, there is evidence that she alongwith her son repeatedly demanded dowry and harassed the deceased. Apparently it is a case of homicide.
8. In view of above and considering direct and active involvement of applicant in the crime, despite the applicant being a lady, is not entitled for bail.
9. The application is accordingly rejected.
Order Date :- 28.7.2021 AK