Court No. - 79
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 20681 of 2021 Applicant :- Seema Dohare Opposite Party :- State of U.P.
Counsel for Applicant :- Santosh Kumar Shukla Counsel for Opposite Party :- G.A.
Hon'ble Saurabh Shyam Shamshery,J.
1. Heard Santosh Kumar Shukla, learned counsel for the applicant, learned A.G.A. and perused the record.
2. The applicant has approached this Court by way of filing the present Criminal Misc. Bail Application seeking enlargement on bail in Case Crime No.671/2020, under Sections 302, 201 and 120-B I.P.C., Police Station- Kotwali, District-Auraiya after rejection of her Bail Application vide order dated 3.2.2021, passed by Special Judge SC/ST (Prevention of Atrocities) Act, Auraiya.
3. Smt. Ramwati, informant lodged an F.I.R. on 29.8.2020 against the applicant and co-accused Parmatma Mishra alleging that her son Rajesh was married with the applicant about 16 years ago. Her son was labourer. Applicant sent her husband with the co- accused Parmatma Mishra on a truck. Earlier, the applicant and her husband used to fight and it was also alleged that the applicant had illicit relationship with the co-accused to which her son objected. On 4.8.2020, an information was received about the dead body which was lying at Auraiya Canal and the same was identified to be of the son of informant (husband of applicant). It was suspected that the applicant and co-accused in a planned manner murdered her son.
4. Learned counsel for the applicant submitted that F.I.R. was lodged after a period of about 25 days and the name of the applicant and co-accused was mentioned only on the basis of suspicion. Learned counsel further submitted that there is no direct evidence of the occurrence. Applicant is arrayed as an accused on the basis of suspicion. The delay in lodging the F.I.R. remained unexplained. There is no recovery of any incriminating material from the possession or pointing of the applicant. There is not a single evidence of alleged criminal conspiracy. He further submitted that the informant has sold a plot amounting to Rs.2.5 lakhs to her elder son Devendra without providing any share to the husband of the applicant. The elder brother of the applicant murdered the husband of the applicant. The cause of death is due to ante mortem head injury. There is no evidence of alleged illicit relationship between the applicant and the co- accused. The co-accused in his confessional statement has only alleged that the role of the applicant was of asking the deceased to accompany with the co-accused who confessed the murder of the deceased. It is submitted that the confessional statement is a very weak piece of evidence. The applicant is a lady and she is languishing in jail since 30.8.2020, there is no likelihood of early disposal of trial and the applicant undertakes that if enlarged on bail, she will never misuse her liberty and will co-operate in the trial.
5. Per contra, learned A.G.A. has vehemently opposed the bail application and submitted that the applicant and the co-accused were in illicit relationship and in a planned manner they hatched conspiracy to eliminate the deceased who was repeatedly objecting their relationship. It was the applicant who asked the deceased to go along with the co-accused on the truck, therefore, the prayer for bail is liable to be rejected.
6 (A). Law on bail is well settled that 'Bail is a rule and jail is an exception'. Bail should not be granted or rejected in a mechanical manner as it concerns liberty of a person. At the time of considering an application for bail, the Court must take into account certain factors such as existence of a prima facie case against the accused, gravity of the allegations, severity of punishment, position and status of the accused, likelihood of the accused fleeing from justice and repeating the offence, reasonable apprehension of tampering with the witnesses and obstructing the Courts as well as the criminal antecedents of the accused.
(B). It is also well settled that the Court while considering an application for bail must not go into deep into merits of the matter such as question of credibility and reliability of prosecution witnesses which can only be tested during the trial. Even ground of parity is one of the above mentioned aspects which are essentially required to be considered.
(C). It is also well settled that the grant or refusal of bail is entirely within the discretion of the judge hearing the matter and though that discretion is unfettered, it must be exercised judiciously and in a humane manner, compassionately and not in whimsical manner. The Court should record the reasons which have weighed with the court for the exercise of its discretionary power for an order granting or rejecting bail. Conditions for the grant of bail ought not to be so strict as to be incapable of compliance, thereby making the grant of bail illusory.
(D). The Court while granting bail in the cases involving sexual offence against a woman should not mandate bail conditions, which is/are against the mandate of "fair justice" to victim such as to make any form of compromise or marriage with the accused etc. and shall take into consideration the directions passed by Supreme Court in Aparna Bhat and others Vs. State of Madhya Pradesh and another, 2021 SCC Online SC 230, in this regard.
7. In the present case, there is sufficient evidence against the applicant which indicates that the applicant and co- accused were in talking terms and co-accused used to fight with her. Even the daughter of the applicant has stated that on 24.7.2020, her mother has asked her father to go along with the co-accused on the truck and she further stated that on 3.8.2020, co-accused has called her mother in the night and they have spoken for a very long time, thereafter, her mother remained puzzled. There are other evidence also which indicates that the deceased used to object the relationship between the applicant and the co-accused. It appears that the applicant was part of a conspiracy with the co-accused which was executed when the applicant asked the deceased to accompany the co-accused on the truck who finally eliminated him. Prima-facie, there are sufficient evidence against the applicant to connect her with the conspiracy with the co- accused to eliminate her husband who objected her relationship with the co-accused.
8. In these circumstances, I do not find any good reason to grant bail.
9. Accordingly, this bail application is rejected.
Order Date:-27.7.2021 SB Digitally signed by Justice Saurabh Shyam Shamshery Date: 2021.07.29 17:14:06 IST Reason: Document Owner Location: High Court of Judicature at Allahabad