Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40933 of 2018 Applicant :- Shiv Kumar Yadav And Another Opposite Party :- State Of U.P. Counsel for Applicant :- S.B.Singh Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. S.B. Singh, learned counsel for the applicants, learned A.G.A. for the State and Mr. Vijay Bahadur Yadav, Advocate, who has put in appearance on behalf of the complainant by filing his Vakalatnama in Court today, which is taken on record.
This application for bail has been filed by the applicants-Shiv Kumar Yadav and Rajesh Yadav seeking their enlargement on bail in Case Crime No. 57 of 2018 under Sections 498A, 304B, 201 I.P.C. and Sections 3/4 Dowry Prohibition Act, P.S.-Maniar, District-Ballia during the pendency of the trial.
From the record, it appears that the marriage of the brother of the applicants, namely, Avdesh Kumar Yadav was solemnized with Babita on 10.07.2016 in accordance with Hindu Rites and Customs. However, before the expiry of a period of two years from the date of marriage of the brother of the applicants, the 'Bhabhi' (the sister-in- law) of the applicants went missing in the night of 5/6th May, 2018. The missing report in respect of the 'Bhabhi' of the applicants was lodged in the morning of 6th May, 2018. The dead body of the deceased (Bhabhi) of the applicants was recovered on 7th May, 2018 on the bank of the Ghaghra River at a village adjacent to the parental house of the deceased. Accordingly, the information of the aforesaid incident was given by the brother of the deceased to the Police. The inquest on the body of the deceased was conducted on 7th May, 2018. According to the opinion of the Panch witnesses, the death of the deceased was said to be in suspicious circumstances. However, no definite opinion could be given by the Panch witnesses as to whether the death of the deceased is homicidal or suicidal. The first information report in respect of the aforesaid incident was lodged on 8th May, 2018 by the brother of the deceased, which came to be registered as Case Crime No. 0057 of 2018 under Sections 201, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act, P.S.- Maniar, District-Ballia.
In the aforesaid F.I.R., five persons, namely, Avdesh Kumar Yadav (the husband), Shiv Kumar Yadav and Rajesh Yadav (the Devars), Parmeshwar yadav (the father-in-law) and Sabita Devi (the Jethani) of the deceased were nominated as named accused. The post- mortem of the body of the deceased was conducted on 07.05.2018. The Doctor, who conducted the autopsy on the body of the deceased opined that the death of the deceased was due to asphyxia on account of drowning. Upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C., the Police has submitted a charge-sheet dated 28.07.2018 under Sections 304B, 201, 498A I.P.C. and Sections 3/4 D. P. Act wherein all the named accused persons were charge-sheeted. According to the learned A.G.A., upon submission of the charge-sheet, cognizance has been taken by the court concerned vide cognizance taking order dated 09.08.2018.
According to the learned counsel for the applicants, the applicants are the unmarried Devars of the deceased. The applicants are aged about 21 and 23 years, respectively having no criminal antecedents to their credit except the present one. The applicants are in jail since 30.05.2018. It is the case of the applicants that they alongwith their father are living separately from the family of the husband of the deceased, i.e., their brother. Learned counsel for the applicants, submits that vague and general allegations regarding demand of dowry have been made in the F.I.R.. It is further contended that by no stretch of imagination, the applicants can be said to be the beneficiaries of the said demand. The deceased was a short tempered lady and has taken the extreme step of committing suicide by drowning herself. No external injury has been found on the body of the deceased. It is thus submitted that in the overall circumstances of the case, the bail application of the applicants is liable to be allowed.
Per contra, the learned AGA and Mr. Vijay Bahadur Yadav, learned counsel appearing for the complainant have opposed the prayer for bail. According to the learned counsel for the complainant, the offence in question is under Section 304B I.P.C. and therefore, the presumption is available to the prosecution. The applicants have failed to discharge the burden, which is required to be discharged in respect of an offence under Section 304B I.P.C. However, the learned A.G.A. as well as the learned counsel for the complainant could not dispute the factual and other legal submissions raised by the learned counsel for the applicants.
Having heard the learned counsel for the applicants, learned A.G.A. for the State 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 applicants have made out a case for bail. Accordingly, the bail application of the applicants is allowed.
Let the applicants-Shiv Kumar Yadav and Rajesh Yadav be released on bail in the aforesaid case crime number on furnishing their personal bond each 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 applicants shall file an undertaking to the effect that they 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 applicants shall remain present before the trial court on each date fixed, either personally or through their counsel. In case of their absence, without sufficient cause, the trial court may proceed against them under section 229-A I.P.C..
(iii) In case, the applicants misuse the liberty of bail during trial and in order to secure their presence proclamation under section 82 Cr.P.C., may be issued and if applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them in accordance with law, under section 174-A I.P.C.
(iv) The applicants 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 applicants 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 them 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 applicants.
However, it is made clear that any wilful violation of above conditions by the applicants, shall have serious repercussion on their bail so granted by this court and the trial court is at liberty to cancel their bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.
Order Date :- 27.10.2018 YK