Court No. - 74
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 35443 of 2019 Applicant :- Sadir Ansari Opposite Party :- State Of U.P.
Counsel for Applicant :- Diwan Saifullah Khan Counsel for Opposite Party :- G.A.,Z.A.Siddiqui
Hon'ble Arvind Kumar Mishra-I,J.
Heard Sri D.S. Khan, learned counsel for the applicant, Mohd. Yunus Khan, learned counsel for the complainant as well as learned A.G.A. for the State of U.P and perused the material available on record.
Urge made on behalf of the applicant has been confined to the extent that it is a case involving Section 306 I.P.C. and the core allegation is that the applicant being husband set her wife ablazed due to which she died. The grounds of bail are that the allegations are bald and baseless and highly motivated against the applicant. No such incident as alleged in the first information report ever took place. It is not a case where any sort of instigation or abetment was caused at the instance of the applicant to the deceased. The dying declaration of the deceased was recorded by Naib Tehsildar of the area, the very same day on 19.01.2018 in the evening after the incident took place wherein cause of fire has been attributed to be independent and it was caused to the deceased while she was working in kitchen and how the fire was caused to the deceased has been described in the dying declaration itself that the plate of gas- oven fell down due to which kerosene oil which was kept near the gas-oven caught inflamed and the deceased was burnt.
In the wake of the aforesaid categorical dying declaration, the claim made on behalf of the applicant is that Section 306 I.P.C. is not attracted from any angle and the dying declaration being independent piece of evidence cannot be bypassed at this stage. It is because of above aspect, initially an exhaustive investigation was conducted by the Investigating Officer, who submitted final report in this case as no case against the applicant was noted by the Investigating Officer. However, only at the instance of the higher police officers, the matter was directed for further investigation and thereafter, without collecting any concrete and substantive evidence bringing the case within four corners of Section 306 I.P.C., charge sheet was filed against the applicant which charge sheet is without any legal force. In case the applicant is admitted to bail, there is no possibility of his absconding or misusing the liberty of bail. The applicant has no criminal history and is languishing in jail since 14.07.2019.
While retorting to the aforesaid aspect of the case, learned counsel for the complainant has claimed that no doubt, exculpatory dying declaration has been made by the deceased but that is not voluntarily, it was managed by the applicant and his family members by threatening the deceased prior to making her dying declaration that in case she did not make this particular statement to the authorities concerned or anyone, her two children will also meet the same fate as the deceased met. The deceased under threat was influenced with safety of her children and she deliberately avoided telling the truth. Under these circumstances, the dying declaration made by the deceased cannot be acted upon as voluntarily, truthful and unbiased.
Learned A.G.A. has adopted the contention of the learned counsel for the complainant.
Without entering into merit of the case but considering the facts and circumstances of the case, nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, reasonable apprehension of tampering with witness or apprehension of threat to the complainant and prima facie satisfaction of the Court in support of the charge, the applicant is entitled to be released on bail. Accordingly, bail application is allowed.
Let the applicant Sadir Ansari involved in Case Crime No.23 of 2018, under Sections 306, 498A, 201 I.P.C., Police Station Lohta, District Varanasi be released on bail on his executing a personal bond and furnishing two sureties each in the like amount to the satisfaction of the court concerned subject to the condition with the following conditions;
(i) The applicant will cooperate with the proceeding before the trial court.
(ii) The applicant will appear before the trial court on the date fixed before the trial court.
In case of breach of any of the above conditions, the court below shall be at liberty to cancel the bail.
Order Date :- 26.9.2019 rkg