Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 22608 of 2021 Applicant :- Rahul @ Nandi @ Nand Kishor Opposite Party :- State of U.P.
Counsel for Applicant :- Sarvesh Kumar Dubey,Bhavisya Sharma Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Sarvesh Kumar Dubey, learned counsel for the applicant, learned A.G.A. and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in S.T. No.240/2021 arising out of Case Crime No.545 of 2020, under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station-Gursahaiganj, District-Kannauj after rejection of his Bail Application vide order dated 17.4.2021 passed by learned Additional Sessions Judge, Court No.1, Kannauj.
3. Applicant and Santosh Devi got married on 15.6.2020. It is alleged that the applicant and his family members were not happy with dowry items given during marriage and for that applicant harassed and committed cruelty with his wife in connection with demand of additional demand of a motorcycle and a gold ring. In the F.I.R. lodged by the father of deceased only against the applicant it was alleged that the applicant has murdered his wife by strangulation.
4. Learned counsel for the applicant submitted that the immediate cause of death of wife of the applicant was asphyxia due to antimortem hanging. Except ligature mark, no injury was found on her body. Learned counsel further submitted that before marriage, the deceased had love affair with another person against whom an F.I.R. was lodged by the father of the deceased, however on the basis of statement of deceased recorded under section 164 Cr.P.C., final report was submitted. She was forcefully married with the applicant. The statements of father, mother and brother of deceased are verbatim. Deceased went to her parental house on 16.11.2020 for attending festival and returned on 26.11.2020. She took this unfortunate on 29.11.2020. The applicant has no other reported criminal antecedent and he is languishing in jail since 3.12.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, he will never misuse his liberty and will co-operate in the trial.
5. Learned A.G.A. has vehemently opposed the bail application and submitted that there are sufficient evidence to connect the applicant, husband of deceased with the dowry death of his wife. She died within six months of her marriage and there are specific allegations against the applicant for demand of dowry of a motor cycle and a gold ring.
6 (A). Law on bail is well settled that 'Bail is a rule and jail is an 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 the 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 into 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.
(C). 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. The Court should record the reasons which have weighed with the court 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 cases involving sexual offence against a woman should not mandate 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, 2021 SCC Online SC 230, in this regard.
7. Undisputedly, death of wife of the applicant occurred within six months of her marriage other than normal circumstances. Relatives of the deceased have specifically mentioned about additional demand of one motorcycle and gold ring. The alleged story of love affair of the deceased with another boy could not be taken into consideration at the stage of bail. There are no allegations of over implication because F.I.R was lodged only against the applicant and after investigation charge-sheet has already been filed. Therefore, prima-facie there is a strong case against the applicant.
8. No case of bail is made out.
9. Application is accordingly rejected.
Order Date:-29.7.2021 SB Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.08.02 17:52:00 IST Reason: Document Owner Location: High Court of Judicature at Allahabad