Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 42272 of 2018 Applicant :- Rajesh Yadav Opposite Party :- State Of U.P.
Counsel for Applicant :- Debee Shanker Pandey,Santosh Kumar Tiwari Counsel for Opposite Party :- G.A.,Ashutosh Tiwari,Sameer Jain
Hon'ble Rajeev Misra,J.
Heard Mr. Debee Shanker Pandey, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Sameer Jain, learned counsel for the complainant.
This bail application has been filed by the applicant Rajesh Yadav, seeking his enlargement on bail in Case Crime No. 517 of 2018 under Sections 498A, 306 IPC, P.S. Lanka, District Varanasi during the pendency of the trial.
From the record, it appears that the marriage of the applicant was solemnized with Soni on 20.4.2018. From the aforesaid wedlock, a son was born, who is said to be aged about 5 and 1/2 years on date. After the expiry of a period of nine years from the date of marriage of the applicant, an unfortunate incident occurred on 25.5.2018, in which the wife of the applicant died as she committed suicide by hanging herself. The F.I.R. in respect of the aforesaid incident was lodged on 25.5.2018 by the father of the deceased namely, Mewa Lal Yadav, which was registered as Case Crime No. 0517 of 2018 under Sections 498A, 306 IPC, P.S. Lanka, District Varanasi. In the aforesaid F.I.R., five persons namely, Rajesh Yadav (husband), Urmila Devi (mother-in-law), Rahul Yadav (devar), Lalji (Nana), Laldei Devi (Nani) of the deceased were nominated as the named accused. The inquest of the deceased was conducted on 25.5.2018 on the information of the first informant. In the opinion of the Panch witnesses, no definite opinion could be given regarding the nature of death of the deceased. The post mortem of the body of the deceased was conducted on 25.5.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased was asphyxia as a result of anti mortem hanging. Apart from the legature mark, no other external ante-mortem injury was found on the body of the deceased. The Police on the basis of the material collected during the course of investigation of the aforesaid case crime number, submitted a charge-sheet dated 19.7.2018 against the husband i.e. the applicant herein. In respect of the other co-accused, investigation is said to be pending. Upon submission of the charge sheet dated 19.7.2018, cognizance has been taken by the Court concerned vide cognizance taking order dated 27.7.2018.
The present bail application came up for orders on 29.11.2018 and the Court passed the following order:-
"Supplementary affidavit filed on behalf of the applicant in Court today, is taken on record.
After some arguments on behalf of the learned counsel for the applicant, the learned A.G.A. and the learned counsel for the complainant, it transpires that other co-accused have not yet surrendered to the process of the Court till date, even though the F.I.R. was lodged on 25.5.2018. Consequently, the hearing of the bail application of the present applicant is deferred to 17.12.2018.
It is made clear that the bail application of the present applicant shall be heard on 17.12.2018, only when the other accused surrender before the Court below and an affidavit to that effect is filed by the learned counsel for the applicant on the next date of hearing.
Put up this case as a fresh case on 17.12.2018. "
In compliance of the aforesaid order dated 29.11.2018, learned counsel for the applicant has filed a supplementary affidavit in Court today. On the basis of the averments contained in the supplementary affidavit, it is urged by learned counsel for the applicant that another co-accused namely, Rahul has surrendered before the Court below prior to the passing of the order dated 29.11.2018. The remaining three accused have moved a surrender application before the Court below on which 20.12.2018 is the date fixed. However, he submits that the police have excluded the other three accused in the concerned case crime number. As such, the order dated 29.11.2018 stands complied with.
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 28.5.2018. The applicant has no criminal antecedents to his credit except the present one. It is next submitted that the poof of charge under section 306 IPC is subject to trial evidence. Up to this stage, there is no evidence to show that the present applicant has aided, conspired or instigated in the commission of the alleged crime. In short the submission is that there is no abetment on the part of the present applicant. Learned counsel for the applicant next contends that looking into the precarious family condition of the applicant when particularly, there is a minor boy aged about 5 and 1/2 years, it is impossible to believe that the present applicant shall abet in the commission of the alleged crime involving his own wife/the mother of the minor. On the aforesaid factual premise, it is urged that the present applicant is liable to be enlarged on bail.
Per contra, the learned A.G.A. and learned counsel for the complainant have opposed the prayer for bail. They submit that the applicant is not only named accused but also a charge sheeted accused. The occurrence has taken place in the house of the applicant and therefore, the burden is upon the applicant himself to explain as to how the occurrence has taken place. However, the applicant has failed to discharge the said burden. However, they could not dispute the factual and legal submissions raised by learned counsel for the applicant.
Having heard the learned counsel for the applicant and the learned A.G.A. for the State and upon perusal of the material brought on record as well as the complicity of the applicant and without making any comment on the merits of the case, I find that applicant has made out a case for bail.
Let the applicant Rajesh Yadav, 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 HE/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 HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.
(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/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 HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.
(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 THE HIM/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 his/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 :- 20.12.2018 Arshad