Court No. - 54
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 46600 of 2018 Applicant :- Tarun Singh Opposite Party :- State Of U.P.
Counsel for Applicant :- Devendra Kumar Shukla,Ambrish Chandra Pandey Counsel for Opposite Party :- G.A.,Ranvijay Singh
Hon'ble Rajeev Misra,J.
Heard Mr. Ambrish Chandra Pandey, learned counsel for the applicant, the learned A.G.A. for the State and Mr. Ranvijay Singh, learned counsel for the complainant.
This bail application has been filed by the applicant Tarun Singh, seeking his enlargement on bail in Case Crime No. 422 of 2017 under Sections 498A, 304B IPC and 3/4 D.P. Act, P.S. Bhelpur, District Varanasi during the pendency of the trial.
From the record, it appears that the marriage of the applicant was solemnized with Pooja Devi on 12.4.2012. After the expiry of a period of more than five years and one month from the date of marriage of the applicant, an unfortunate incident occurred on 9.6.2017, in which the wife of the applicant sustained burn injuries. It is the case of the applicant that immediately after the aforesaid occurrence had taken place, the victim was rushed to a hospital, where she was administered first aid and thereafter, shifted to Life Line Hospital, Varanasi on the same date. Consequently, the victim was under medical treatment at the aforesaid hospital from 9.6.2017 upto 17.6.2017. During this period, the first statement of the victim was recorded on 10.6.2017, in which the victim is alleged to have exonerated the present applicant. However, in the subsequent statement of the victim, which was recorded on 17.6.2017, the victim has clearly implicated the present applicant for the criminality alleged. Ultimately, the victim succumbed to the burn injuries sustained by her on 17.6.2017. The information of the death of the deceased was accordingly given by the ward boy of the hospital at the concerned Police Station on 17.7.2017. On this information, the inquest of the deceased was conducted on 17.7.2017. However, in the opinion of the Panch witnesses, no definite opinion could be given regarding the nature of death of the deceased. The post mortem of the body of the deceased was conducted on 18.7.2017. The Doctor, who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is septicaemic shock as a result of infected burn injuries. The Doctor further detailed the ante- mortem injuries found on the body of the deceased as follows:-
"Dermo epidermal inflated burn injuries, all over the body, except head. (forehead, Top of Head and back of Head). Burn area covered with sloughs and pus. Burn area about 90 %"
The F.I.R. in respect of the aforesaid incident was lodged belatedly after expiry of a period of one month and two days from the date of occurrence on 19.7.2017 by Kishore Singh the father of the deceased, which was registered as Case Crime No. 422 of 2017 under Sections 498A, 304B IPC and 3/4 D.P. Act, P.S. Bhelpur, District Varanasi. In the aforesaid F.I.R., four persons namely, Taran Singh (husband), Shobha Devi (mother- in-law) Dablu Singh (Jeth), Sadhna Singh (Jethani) of the deceased were nominated as the named accused. The Police upon completion of the statutory investigation of the aforesaid case crime number, submitted a charge-sheet dated 24.9.2018 only against the husband. In respect of the other accused, the investigation is still said to be pending. Upon submission of the charge sheet dated 24.9.2018, cognizance has been taken by the Court concerned vide cognizance taking order dated 4.10.2018 and thereafter the case was committed to the Court of Sessions. According to the learned counsel for the applicant, the charges have not been framed till date.
Learned counsel for the applicant submits that the applicant is the husband of the deceased but he is innocent. The applicant is in jail since 7.7.2018. The applicant has no criminal antecedents to his credit except the present one. It is then submitted that the first dying declaration of the deceased was recorded on 10.6.2017, photo copy of which is on the record at page 31 of the paper book. In the aforesaid statement, the victim has clearly exonerated the present applicant in respect of the incident which occurred on 9.6.2017. However, the subsequent statement of the victim was recorded on 17.6.2017, in which the victim has taken a different stand from her earlier statement and now implicated the present applicant for the criminality alleged against him. Learned counsel for the applicant submits that second dying declaration of the deceased was recorded on 17.6.2017 is liable to be ignored in view of the earlier dying declaration of the deceased recorded on 10.6.2017. On the aforesaid factual premise, the learned counsel for the applicant submits that the applicant even though he is the husband of the deceased is liable to be enlarged on bail.
Per contra, the learned A.G.A. and learned counsel for the complainant has opposed the prayer for bail. It is well established principle of Law that the statement of the deceased which has been recorded must be followed by the death of the deceased, where the time period between the statement and death is not short, such a statement cannot be recorded as a dying declaration. Reference in this regard may be made to the judgement of this Court in the Case of Manjeet @ Shalu Pandey Vs. State of U.P. reported in 2018 (6) ALJ 277, wherein the following has been held in para 49 of the Judgement.
"Dying declaration will be admissible in evidence only when the person making the statement dies and the cause of the person's death comes into question. If the person making a dying declaration survives, such a statement will not come within the purview of Section 32(1) of the Evidence Act. Dying declaration is an exception to the general rule of excluding the hearsay evidence. The burden of proving the dying declaration is always on the prosecution. Since an accused can be convicted solely on the basis of dying declaration, it is always better that the court should carefully scrutinize the same. Three essential ingredients will have to be proved to the satisfaction of the court before a dying declaration becomes admissible in evidence are :- (i) the declarant should have been in actual danger of death at the time when he made the statement; (ii) he should have had full apprehension of his danger and (iii) death should have ensued."
It is thus urged that since the dying declaration of the deceased clearly implicate the present applicant for the criminality alleged, no case for grant of bail is made out and the bail application of the applicant is liable to be rejected.
Having considered the submissions made by the learned counsel for the applicants, the learned A.G.A. for the State and upon perusal of the material brought on the record and the complicity of the applicants but without making any comments 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 of the present applicants 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 six months 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.
Order Date :- 21.12.2018 Arshad