Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2688 of 2019 Applicant :- Rizwan Opposite Party :- State Of U.P. Counsel for Applicant :- Zafeer Ahmad Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Zafeer Ahmad learned counsel for the applicant, the learned A.G.A. for the State and Mr. Kaustubh Srivastava the learned counsel for the complainant who has filed his Vakalatnama in Court today which is taken on record.
This application for bail has been filed by Rizwan seeking his enlargement on bail in Case Crime No. 366 of 2018 under Sections 498A, 304B I.P.C. and Section Dowry Prohibition Act, P. S. Modi Nagar District- Ghaziabad.
It transpires from the record that the marriage of the applicant was solemnized with Hina Parveen on 17.04.2017. Just after the expiry of a period of one year from the date of marriage of the applicant, an unfortunate incident has occurred in which the wife of the applicant died. The F.I.R. in respect of the aforesaid incident was lodged on 21.05.2018 by the uncle of the deceased. The said F.I.R. came to be registered as Case Crime No. 366 of 2018 under Sections 498A, 304B and Section Dowry Prohibition Act, P. S. Modi Nagar District- Ghaziabad. In the aforesaid F.I.R four persons, namely, the husband, the Devar, mother-in-law of the deceased and one Rizwan Parvej alias Babbo relative of the present applicant were nominated as the named accused. The post mortem of the body of the deceased was conducted on 22.05.2018. The doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is asphyxia due to ante mortem hanging. Upon completion of the investigation the police has submitted a charge sheet upon which cognizance was taken by the court concerned and the case has been committed to the Court of Sessions. Accordingly, Sessions Trial No. 669 of 2018 (State Versus Rizwan & 2 Others) came to be registered. The same is said to be pending in the Court of District and Sessions Judge, Ghaziabad.
Learned counsel for the applicant submits that though the applicant is the husband of the deceased but he is innocent. The applicant is in jail since 23rd May, 2018. The applicant has no criminal antecedents to his credit except the present one. It is then submitted that the deceased was a short tempered lady and she has taken the extreme step of committing suicide by hanging herself. Except for the ligature mark, no other external ante-mortem injury has been found on the body of the deceased. Absence of any external ante-mortem injury on the body of the deceased clearly denotes the bona fide of the present applicant. It is next submitted that the applicant was not present at the time and place of occurrence. To substantiate the aforesaid submission, attention of the Court was invited to the statement of the prosecution witness, who testimony has been recorded under Section 161 Cr.P.C. which is on record as Annexure-8 of the affidavit accompanying the present bail application. On the strength of the aforesaid submissions, it is urged that since the present applicant was not present at the time and place of occurrence, the applicant is not liable to be prosecuted for an offence under Section 304-B I.P.C. Two of the named accused, namely, Imran and Smt. Nazma, Devar and mother-in-law of the deceased respectively have already been enlarged on bail by this Court vide orders dated 10th October, 2018 and 4th December, 2018 respectively. On the aforesaid factual premise, it is thus, urged that even though the present applicant is the husband of the deceased, but he is liable to be enlarged on bail.
Per contra, the learned A.G.A. for the State and Mr. Kaustubh Srivastava, learned counsel appearing for the complainant have opposed the prayer for bail. They submit that the applicant is the husband of the deceased. The deceased has died at her matrimonial home just after the expiry of a period of little more than one year from the date of her marriage. As such the death of the deceased is highly unnatural. Since the occurrence has taken place in the house of the applicant and within seven years of marriage from the date of marriage of the applicant and the deceased, the burden is upon the applicant himself to explain the manner of occurrence as well as cause of occurrence in terms of Sections 106 and 113-B of the Indian Evidence Act. However, the applicant has failed to discharge the said burden. It is, thus, urged that the bail application of the present applicant is liable to be rejected. They lastly submit that the applicant cannot claim any parity from the bail orders in respect of the co-accused, namely, Imran and Smt. Nazma, Devar and mother-in-law of the deceased respectively, as they stand on different footing.
Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State, Mr. Kaustubh Srivastava, learned counsel appearing for the complainant and upon perusal of the evidence brought on record as well as the complicity of the applicant but without commenting on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application 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 one year 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.
(Rajeev Misra, J.) Order Date :- 22.1.2019 Sushil/-