Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 41801 of 2018 Applicant :- Om Shankar Opposite Party :- State Of U.P. Counsel for Applicant :- Suneel Kumar Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Suneel Kumar Tiwari, learned counsel for the applicant and the learned A.G.A. for the State.
This bail application has been filed by the applicant Om Shankar, seeking his enlargement on bail in S.T. No. 184 of 2018 (State Vs. Om Shanker) arising out of Case Crime No. 80 of 2018 under Sections 323, 506, 304B IPC, and Sections 3/4 Dowry Prohibition Act, P.S. Jahanabad, District Philibhit during the pendency of the trial.
From the record, it transpires that the marriage of the applicant was solemnized with Asha Devi on 20.5.2013. From the aforesaid wedlock, the applicant was blessed with a son, who is said to be aged about one year. After the expiry of a period of four years and eight months from the date of marriage of the applicant, an unfortunate incident occurred on 23.2.2018, in which the wife of the applicant sustained burn injuries. It is the case of the present applicant that after the occurrence had taken place, the victim was taken to the Community Health Center, Jahanabad, from where she was referred to the District Dospital, after having been administered first-aid. Accordingly, the victim was got admitted at District Hospital, Philibhit on 23.2.2018. The statement of the victim was recorded on 21.2.2018, the photo copy of which is on the record at Page 38 of the paper book. The victim under went treatment at the aforesaid hospital from 23.2.2018 to 1.4.2018. Ultimately, the victim succumbed to her injuries on 1.4.2018. The inquest of the body of the deceased was conducted on 1.4.2018 on the information given by the ward boy of District Sadar Hospital, Philibheet. In the opinion of the Panch witnesses, the death of the deceased was characterized as homicidal. The post mortem of the body of the deceased was conducted on 1.4.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is shock as a result of anti mortem thermal burn injuries. The Doctor further found that the deceased had sustained 70% burn injuries all over the body.
The F.I.R. in respect of the aforesaid incident was lodged on 10.3.2018 which is prior to the conduct of the inquest as well as post mortem of the body of the deceased. The said FIR was registered as Case Crime No. 0080 of 2018 under Sections 323, 506, 304B IPC, and Sections 3/4 Dowry Prohibition Act, P.S. Jahanabad, District Philibhit. In the aforesaid F.I.R., the present applicant namely Om Shankar was nominated as the solitary accused. After the death of the victim on 1.4.2018 the case was converted under Section 304B IPC. The police upon completion of the statutory investigation of the aforesaid case crime number, in terms of Chapter XII Cr.P.C. has submitted the charge-sheet dated 19.5.2018 implicating the present applicant. Upon the submission of the aforesaid charge sheet, cognizance has been taken upon the same by the Court concerned vide cognizance taking order dated 22.6.2018. Thereafter, the case was committed to the court of Sessions and, accordingly, S.T. No. 184 of 2018 (State Vs. Om Shankar) came to be registered . It is submitted that on date the aforesaid Sessions trial has been transferred to the court of FTC (WP), Philibhit and is pending.
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 11.3.2018. The applicant has no criminal antecedents to his credit except the present one. Placing reliance upon the dying declaration of the deceased photo copy of which is at page 38 of the paper book, learned counsel for the applicant submits that the deceased has clearly stated in her dying declaration regarding the manner in which the occurrence took place. On the strength of the aforesaid dying declaration, it is urged that no criminality can be said to have been committed by the present applicant resulting in the death of the wife of the present applicant. It is thus urged that the present applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. has opposed the prayer for bail. He submits that the statement of the victim (now deceased) recorded on 24.4.2018 cannot be treated as dying declaration in terms of section 32 of the Indian Evidence Act. He has also relied upon the Division Bench judgment of this Court in the case of Manjeet @ Shalu Pandey Vs. State of U.P. reported in 2018 (6) ALJ 277 para 49 of the aforesaid judgment relied upon by the learned AGA is quoted herein as under:-
"Dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person's death comes into question. If the person making a dying declaration survives, such a statement will not come within the purview of Section 32(1) of the Evidence Act. Dying declaration is an exception to the general rule of excluding the hearsay evidence. The burden of proving the dying declaration is always on the prosecution. Since an accused can be convicted solely on the basis of dying declaration, it is always better that the court should carefully scrutinize the same. Three essential ingredients will have to be proved to the satisfaction of the court before a dying declaration becomes admissible in evidence are :- (i) the declarant should have been in actual danger of death at the time when he made the statement; (ii) he should have had full apprehension of his danger and (iii) death should have ensued."
It is thus urged that since the death of the deceased has taken place within a period of seven years from the date of marriage of the applicant, presumption is available to the prosecution which remains unexplained up to this stage. It is thus submitted that the bail application of the applicant is liable to be rejected.
Having heard learned counsel for the applicant and learned AGA for the State and in view of the facts as noted herein above and also upon perusal of the material brought on record, I do not find any good reason to grant indulgence to the present applicant. Accordingly, the bail application of the applicant stands rejected.
However, the trial court is expected to gear up the trial of the aforesaid case and conclude the same within a period of six months from the date of production of a certified copy of this order, in accordance with law, without granting any unnecessary adjournment to either of the parties, provided the applicant fully cooperates in conclusion of the trial, if there is no other legal impediment.
Office is directed to transmit a certified copy of this order to the court concerned within a fortnight.
Order Date :- 29.11.2018 Ravi Kant