Kamal Vs State of U.P.

Court No. - 11

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10156 of 2020

Applicant :- Kamal Opposite Party :- State of U.P. Counsel for Applicant :- Ramakar Shukla Counsel for Opposite Party :- G.A.,Manoj Kumar Singh

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Hon'ble Rajesh Singh Chauhan,J.

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Heard Shri Ramakar Shukla, learned Counsel for the applicant, Shri Abhinav Singh, Advocate holding brief for Shri Manoj Kumar Singh, learned Counsel for the informant / complainant and Shri Vishnu Dev Shukla, learned A.G.A. for the State.

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Shri Ramakar Shukla has filed supplementary affidavit enclosing therewith the statement of all fact witnesses and one formal witness i.e. the Doctor, who have been examined before the learned Trial Court, as S.A.-1.

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As per Shri R. Shukla, the present applicant is in jail since 13.02.2020 in Case Crime No. 593 of 2020, under Sections 498-A, 304-B IPC, 3/4 Dowry Prohibition Act, Police Station - Kotwali Dehat, District - Sultanpur. He has further submitted that the present applicant has been falsely implicated, as, he has not committed any offence as alleged.

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The attention of this Court has been drawn towards the impugned FIR wherein the present applicant and his brother has been implicated, however, the charge sheet has been against the present applicant only. The allegations in the FIR are relating to the demand of dowry and torturing the victim. The cause of death of the victim is burning. There was no ante-mortem injuries as per the postmortem report.

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Shri Ramakar Shukla has placed reliance upon Annexure - 7 which is an application of the father of the victim namely Nawal Kishor Singh to the Superintendent of Police, Sultanpur supported with an affidavit wherein he has categorically submitted that on the basis of wrong information he has lodged FIR against the applicant and his brother. He came to know the real story, therefore, he does not wish to pursue the FIR. He has further submitted that the applicant or his brother has never demanded any dowry nor tortured his daughter. He went on to submit in such affidavit that the present applicant and his daughter were in love affair and the marriage was love marriage. Further, his daughter died of burning which was sheer

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accident at the time of cooking food. Lastly, he has submitted that he is filing the aforesaid affidavit consciously and with free will as nobody has forced him to file such affidavit. Therefore, Shri R. Shukla has submitted that on the basis of aforesaid affidavit filed on 27.01.2020, no investigation should have taken place but on the basis of FIR, the investigation was completed and the present applicant has been charge sheeted.

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Shri R. Shukla has further drawn the attention of this Court towards Annexure - S.A. 1 of the supplementary affidavit filed today demonstrating the statement of PW-1, father of the victim, PW-2, mother of the victim who have not supported the prosecution story, rather submitted that there was no complaint from his daughter regarding demanding dowry or torturing her. PW-1 has also submitted that he had himself given one affidavit to Superintendent of Police, Sultanpur to the effect that the FIR was lodged on misconception and on the basis of wrong information, as, he had no grievance with the present applicant or his brother. Since, both the aforesaid prosecution witnesses i.e. PW-1 and PW-2 have not supported the prosecution story rather disputed the prosecution story, therefore, both the aforesaid witnesses have been declared hostile. He has also drawn attention of this Court towards the statement of PW-3 who is Uncle of victim and has not leveled any allegation against the present applicant. He has also shown the statement of one Jiya Lal and Nanhu Ram, i.e. PW-4 and PW-5 respectively who have also not supported the prosecution story, therefore, both the aforesaid independent witnesses who are villagers and live near to the place of the present applicant have been declared hostile.

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The formal witness Dr. Arvind Prasad have also been examined as PW-6. Therefore, Shri R. Shukla has submited that since the father of the victim (since deceased) had earlier filed one affidavit before the Superintendent of Police making request that no action be taken against his son-in-law, as, the FIR was lodged on the basis of wrong information and later on both the parents of the victim have not supported the prosecution story, therefore, declared hostile, so, the present applicant is entitled for bail. He also opined that two independent witnesses have also not supported the prosecution story and have been declared hostile. Shri R. Shukla has also informed that there are total 15 prosecution witnesses, out of them 6 prosecution witnesses have been examined, particularly all fact witnesses have been examined and remaining fact witnesses have been discharged, therefore, if the present applicant is released on bail, there may not be any apprehension of tampering evidence or influencing witnesses. Besides, after completion of examination of prosecution witnesses, the defence witnesses would be

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examined and thereafter, the trial would be concluded after adopting the due procedure of law but in any case there is no likelihood to conclude the trial in near future, therefore, in given circumstances, the present applicant may be enlarged on bail.

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Per Contra, learned A.G.A. as well as learned Counsel for the informant/complainant have opposed the prayer of bail but could not dispute the aforesaid submissions so advanced by Shri R. Shukla, learned Counsel for the applicant. Both the aforesaid Counsel's for the opposite parties have stated that since the argument of Shri R. Shukla is based on records, therefore, they have nothing to say.

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Without entering into the merits of the issue and considering the allegation of the FIR; an application along with affidavit dated 27.01.2020 preferred by the father of the victim (since deceased) to the Superintendent of Police, Sultanpur (Annexure - 7) wherein he has categorically stated that the impugned FIR was lodged on the wrong information and he had not grievance of any kind whatsoever against the present applicant or his brother; the statement of prosecution witnesses, most particularly, fact witnesses who have been declared hostile and the period of incarceration of the present applicant i.e. 2 years 3 months; I am of the view that this is a fit case for grant of bail.

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Accordingly, the bail application is allowed. Further it is made clear that the trial Court while conducting and concluding the trial shall not get influenced from any observation made in this order, as, the aforesaid observations are only relating to dispose of the bail application and the trial shall be conducted and concluded strictly in accordance with law as per Section 309 Cr.P.C.

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Let the applicant- Kamal , be released on bail in the aforesaid case crime number on his furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:-

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(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates 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.

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(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal

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Code.

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(iii) 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. is issued and the 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 of the Indian Penal Code.

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(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) 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.

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(v) The applicant shall not leave the country without prior permission of the Court.

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Order Date :- 26.5.2022 Lokesh Kumar

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Digitally signed by LOKESH KUMAR Date: 2022.05.28 13:33:20 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Kamal v. State of U.P.

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Kamal v. State of U.P.

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