Court No. -79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30533 of 2019 Applicant :- Om Prakash Pandey Opposite Party :- State of U.P.
Counsel for Applicant :- Shashi Bhushan Kunwar Counsel for Opposite Party :- G.A.
Hon'ble Rajiv Joshi,J.
Heard learned counsel for the applicant and learned A.G.A. for the State and perused of the record.
The instant bail application has been filed by the applicant in case crime No. 45 of 2018, under Sections- 498-A, 304-B IPC and Section ¾ of D.P. Act, Police Station Dubhar, District- Ballia with the prayer to enlarge him on bail during the pendency of trial.
It is submitted by learned counsel for the applicant that the applicant is innocent and has falsely been implicated in the present case. The applicant is husband of the deceased. It is next submitted that the FIR was lodged by the brother of the deceased to the effect that the marriage of the applicant with his sister was solemnized in the year 2013 as per hindu rites and rituals and the family members of the informant has spent about 5 lacs in the marriage and out of wedlock of the deceased and applicant, one male child was born. It is next submitted that that as per the FIR that the accused persons including the applicant were not happy with the dowry from the side of the deceased and demanded motorcycle, due to non fulfillment of additional dowry they have committed dowry death by burning the deceased. The postmortem of the deceased was conducted on 14.9.2018 and the cause of death was due to ante-mortem burn injuries all over the body except both solo and lower abdomen below unbelieved to genital area which is assessed to be 90%. It is contended by learned counsel for the applicant that the wife/deceased of the applicant was died due to burn injuries while she was making cooking meals, she caught the fire resulting into her death. It is next submitted that there are general allegation for demand of dowry and harassment which has been levelled against all the accused persons. It is next submitted that mother and father of the applicant had already been enlarged on bail by the co-ordinate Bench of this Court vide orders dated 11.4.2019 and 7.5.2019 passed in Criminal Misc. Application Nos. 15090 of 2019 and 19317 of 2019, hence the applicant is entitled for bail on the ground of parity. The applicant has no criminal history and is languishing in jail since 29.9.2018. The applicant undertakes that in case he is released on bail, he will not misuse the liberty of bail and cooperate in trial.
Learned A.G.A. vehemently opposed the prayer for bail and submits that the marriage of the accused/applicant and deceased was solemnized in the year 2013 and the incident took place on 13.9.2018 and the death was covered within seven years and as such there is presumption against the applicant under Section 113 B of the Evidence Act. It is further submitted that unless the said burden was discharged, the applicant is not entitled for bail. It is next submitted that the trial has commenced, in which, the statement of four witnesses as P.W.1 to P.W.4 have recorded.
After hearing the learned counsel for the applicant, learned A.G.A. and after perusing the averments as contained in the present bail application and also looking to the seriousness of the allegations as made in the FIR, gravity of the offence and severity of the punishment, no case for grant of any indulgence is made out at this stage.
Accordingly, the application for bail is rejected.
However, looking to the period of detention of the applicant, it is directed that the aforesaid case pending before the court below be decided expeditiously, within one year in accordance with Section 309 Cr.P.C. and also in view of principle as has been laid down in the recent judgement of Hon'ble Apex Court in the case of Vinod Kumar Vs. State of Punjab; 2015 (3) SCC 220.
It is made clear that in case, the witnesses are not appearing before the court concerned, liberty is being given to the concerned court to take necessary coercive measures in accordance with law for ensuring the presence of the witnesses.
Office is directed to forward a copy of this order to the concerned court below for necessary compliance.
However, it is being made clear that in case, trial is not concluded within the aforesaid period of one year, applicant is given liberty to file a fresh bail
Order Date :- 25.10.2021 Akbar