Court No. - 52
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29596 of 2021 Applicant :- Sarkhu Paswan Opposite Party :- State of U.P.
Counsel for Applicant :- Rajeev Upadhyay Counsel for Opposite Party :- G.A.,Dilnawaz Ahmad Khan,Yogesh Kumar Mishra
Hon'ble Samit Gopal,J.
Heard Sri Rajeev Upadhyay, learned counsel for the applicant, Sri U.P. Singh, learned counsel for the State and perused the material on record.
Sri Dilnawaz Ahmad Khan and Sri Yogesh Kumar Mishra, learned counsels for the first informant are not present even when the matter has been taken up in the revised list.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Sarkhu Paswan, seeking enlargement on bail during trial in connection with Case Crime No. 78 of 2021, under Sections 498-A, 306 I.P.C., registered at Police Station Raunapur, District Azamgarh.
The First Information Report in the present case was lodged by Abhimanyu Paswan the brother of the deceased Smt. Vidyawati on 07.05.2021 under Section 306 IPC against the applicant only alleging therein that the marriage of his sister Smt. Vidyawati in the year 2004 with the applicant. From their wedlock two boys and one girl were born. Since after the marriage his sister was being assaulted and tortured for dowry and a demand was of a motorcycle. A motorcycle and other articles were given as dowry to him but still his brother-in-law used to torture his sister. His sister Vidyawati after getting annoyed with it committed suicide by hanging herself on 07.05.2021.
Learned counsel for the applicant argued that the postmortem on the body of the deceased was conducted in which except for one ligature there was no other bodily injury found. The doctor conducting the same has opined the cause of death is asphyxia as a result of hanging. It is argued that the prosecution case is false and the applicant has been falsely implicated in the present case. It is argued that on the own showing of the first informant, motorcycle was given to the applicant and as such there was no question of demand of a motorcycle. It is argued that during investigation Section 498-A IPC has been added.
Learned counsel for the applicant argued that there is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased. The applicant has no mens-rea at all. There is no overt act whatsoever of the applicant which resulted in the death of the deceased, the applicant has no motive at all to commit the aforesaid offence.
Per contra, learned counsel for the State opposed the prayer for bail and argued that the applicant is the husband of the deceased and his conduct has been stated in the First Information Report itself which was the reason for the deceased to commit suicide.
After having heard learned counsels for the parties and perusing the records, it is evident that the marriage of the applicant with the deceased was solemnized around 17 years back. There were three children from their wedlock. The deceased except for one ligature on her body the doctor has not found any other bodily injury and the cause of death is asphyxia as a result of hanging. There is no abetment and instigation of any kind by the applicant which has any nexus with the death of the deceased. The applicant has no mens-rea at all. There is no overt act whatsoever of the applicant which resulted in the death of the deceased.
Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.
Let the applicant Sarkhu Paswan, 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 will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.
ii) The applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) 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.
(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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.
(V) 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 and the trial court may proceed against him under Section 229- A IPC.
(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.
The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail and send the applicant to prison.
The bail application is allowed.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 7.10.2021 M. ARIF (Samit Gopal, J.)