Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 43188 of 2018 Applicant :- Rajeev Kumar Opposite Party :- State Of U.P.
Counsel for Applicant :- Narendra Kumar Singh Counsel for Opposite Party :- G.A.,Manoj Kumar Yadav
Hon'ble Rajeev Misra,J.
Heard Mr. Narendra Kumar Singh, learned counsel for the applicant and learned A.G.A. for the State.
A short counter affidavit filed on behalf of the complainant in Court today is taken on record.
This application for bail has been filed by the applicant-Rajeev Kumar seeking his enlargement on bail in Case Crime No. 213 of 2018 under Sections 498A, 304B I.P.C. and Sections 3/4 D. P. Act, P.S.- Kampil, District-Farrukhabad, during the pendency of the trial.
Perused the record.
It transpires from the record that the marriage of the applicant was solemnized with Maya Devi on 19.04.2017 in accordance with the Hindu Rites and Customs. However, after the expiry of a period of one year and two months from the date of marriage of the applicant, an unfortunate incident occurred on 09.06.2018, in which the wife of the applicant died and the first information report in respect of the aforesaid incident was lodged on 09.06.2018 by Kalyan Singh Yadav, the father of the deceased. The timing of registration of the first information report is 12.46 P.M. and is relevant for the controversy involved. The first information report was registered as Case Crime No. 0213 of 2018 under Sections 498A, 304B I.P.C. and Sections 3/4 D. P. Act, P.S.- Kampil, District-Farrukhabad.
In the aforesaid F.I.R., five persons, namely, Rajeev Kumar-husband, Jagdish Singh-father-in-law, Sanjeev Kumar-Jeth, Nanhi Bitiya-Jethani of deceased and Subodh Kumar, the mediator of the marriage were nominated as named accused. The inquest of the deceased was performed on 09.06.2018. not on the information given by the present applicant or any of his family members but on the information given by the father of the deceased, namely, Kalyan Singh Yadav. In the opinion of the Panch witnesses, the death of the deceased was characterised as homicidal. The post-mortem of the body of the deceased was conducted on 09.06.2018. 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 strangulation. Apart from the above, the Doctor further found eight ante- mortem external injuries on the body of the deceased, which are detailed herein below:-
"1. Abraded contusion 12 cm. x 2.5 cm. over anterior lateral aspect of left side of neck upper middle part on dissection hemotoma at neck muscle- ruptured, thyroid cartridge 3 trachea-depressed.
2. Contusion 10.00 cm. x 7.00 cm. over left mastoid region.
3. I.W. 2.0 cm. x 0.4 cm. x bone deep over left side of chin.
4. Contusion 4.0 cm. x 2.0 cm over right clavicle region.
5. Contusion 5.0 cm. x 3.0 cm. over dorsal side right hand.
6. Contusion 1.0 cm. x 5.0 cm. over dorsal side left little finger middle phalynx.
7. Contusion 3.0 cm. x 2.0 cm. outer side left arm lower part.
8. Contusion 3.0 cm x 2.5 cm.palmer aspect left hand below thumb.
The Police upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. has submitted a charge- sheet dated 16.10.2018 only against four of the named accused whereas Subodh Kumar, one of the named accused, was excluded. The charge- sheet was submitted under Sections 498A, 304B, 120B I.P.C. and Section 3/4 D. P. Act. What has happened subsequent to the submission of the charge-sheet dated 16.10.2018 has not been detailed in the affidavit accompanying the present bail application nor in the supplementary affidavit filed by the applicant nor the same has been disclosed at the time of hearing of the present bail application either by the learned counsel for the applicant, or by the learned counsel for the complainant as well as the learned A.G.A.
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 14.08.2018. The applicant has no criminal antecedents to his credit except the present one. It is then submitted that the applicant was not present at the time and place of occurrence. In short, the plea of alibi has been raised by the husband in proof of his innocence. Elaborating his submissions, learned counsel for the applicant summits that it is established from the record that the applicant has deposited money in the account of the deceased from Nagpur and in support thereof, he has invited the attention to the counterfoil of the deposit made in the Bank of India, copy of which is at 64 of the paper-book. He has also drawn the attention of the Court to the supplementary affidavit filed by him particularly to Annexure SA-4 to the supplementary affidavit, which is a letter issued by the Senior Manager, Jet Airways, Nagpur to demonstrate that the applicant had travelled from Nagpur to Delhi at 5.20 pm on 09.06.2018. On the strength of the aforesaid evidence, it is thus urged that the applicant was not present at the time and place of ocurrence, Prima-facie, the applicant cannot be implicated in the criminality committed upon the wife of the applicant. On the aforesaid factual premise, it is urged that the applicant is liable to be enlarged on bail.
Per contra, the learned counsel appearing on behalf of the complainant and the learned A.G.A. have strongly opposed the present bail application. They submit that the applicant is the husband of the deceased. The death of the wife of the applicant had taken place just after the expiry of a period of one year and two months from the date of her marriage. The applicant is a charge-sheeted accused under Sections 498A, 304B, 120B I.P.C and Sections 3/4 D. P. Act. As such, presumption is available to the prosecution in terms of Section 113 of the Indian Evidence Act. Upto this stage, there is no evidence to show that the applicant has discharged the burden arising out of an offence under Section 304B I.P.C. Upon a pointed query raised by the Court to the learned A.G.A. to demonstrate from the case diary the evidence on the basis of which, the presence of the present applicant at the time and place of occurrence is established, neither the learned A.G.A. nor the learned counsel appearing for the complainant could point out any such material in the case diary on the basis of which the presence of the present applicant at the time and place of occurrence is prima facie found to be established. Consequently, the submissions urged by the learned counsel for the applicant that the applicant was not present at the time and place of occurrence stand undisputed by the learned A.G.A. as well as the learned counsel for the complainant.
Having heard the learned counsel for the applicant, learned A.G.A. for the State, learned counsel for the complainant and upon consideration of the evidence on record as well as the complicity of the applicant but without expressing any opinion on merits of the case, I am of the view that the applicant has made out a case for bail. Accordingly, the bail application of the applicant is allowed.
Let the applicant-Rajeev Kumar 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 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 counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his 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, in accordance with law, under section 174-A I.P.C.
(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 him 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 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.
In addition to the above, it is provided that the learned trial court to gear up the trial and make necessary endeavour to conclude the same within one year provided the applicant would render all necessary co-operation in early conclusion of the trial.
Office is directed to communicate the copy of this order forthwith to concerned court for necessary compliance.
Order Date :- 18.12.2018 YK