Allowed

Subhash Goswami v. State of U.P.

Allahabad HC11 Feb 2022/1736/2021

Case brief

AI extract

What is this about?

In a bail application challenging a charge under Sections 498A IPC and 304B IPC for alleged dowry death, the High Court allowed the prayer and enlarged the applicant on bail, relying on Supreme Court precedents regarding substantial time served and先例 regarding general allegations.

What did the court decide?

Application allowed; Applicant enlarged on bail on executing a personal bond and two sureties subject to eight specific conditions regarding appearance, cooperation, and prohibition of tampering.

Subhash Goswami Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2022)

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Court No. - 34

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 1736 of 2021 Applicant :- Subhash Goswami Opposite Party :- State of U.P. Counsel for Applicant :- Smt. Nalini Prakash Jain,Sonam Kumari Thapa Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Counter and rejoinder affidavits have been exchanged between the parties.

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Heard Smt. Nalini Prakash Jain, learned counsel for the applicant and Sri Arvind Kumar Tripathi, learned A.G.A. for the State and perused the record.

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The applicant, Subhash Goswami , has moved the present bail application seeking bail in Case Crime No. 114 of 2020, under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Katra Bazar, District Gonda.

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Learned counsel for the applicant submits that according to the prosecution it has been alleged by the complainant that the marriage of his daughter, namely, Rinki was solemnized with Subhash, the present applicant, on 09.06.2016 as per Hindu rites and rituals and her gauna was performed on 08.03.2019, meaning thereby she remained in her parental house for more than five years. The F.I.R. was lodged against the four persons, namely, Subhas (the present applicant), Ramesh(father-in-law), Chhotkau (Jeth) and Chhotkau’s wife (Jethani). All the accused persons used to harass deceased by assaulting and hurling four abuses. It has also been alleged by the complainant that all the accused persons demanded Maruti Car from him in dowry and also threatened him by saying that in case aforesaid demand was not fulfilled, they will kill his daughter and in the night of 24/25.05.2020 all the accused persons have killed his daughter. It was also alleged that the deceased has two month’s female baby in her lap.

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Learned counsel for the applicant further submits that the applicant is innocent and has not committed the allege crime and he has falsely been implicated just because he is husband.

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Learned counsel for the applicant further submits that the general allegation has been made against all the accused persons named in the F.I.R. The applicant does not have any active role in the commission of the alleged crime. There in no incriminating evidence against the

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applicant for the alleged demand of dowry and the consequent harassment or torture.

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Learned counsel for the applicant further submits that as per postmortem, the immediate cause of death is shown as Asphyxia due to antemortem hanging. Except for the ligature mark, no other injury has been found on the body of the deceased.

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Learned counsel for the applicant further submits that not only the applicant but also other members of the family never made any demand of Maruti Car or any dowry in the marriage and the marriage so solemnized was a dowry free marriage.

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Learned counsel for the applicant further submits that it is clearly explicit from the post-mortem report that the deceased did not suffer from any injury on her body save for the injuries suffered as a result of handing, because if the deceased had been subjected to any pressure by the accused persons then the deceased would surely resented the action of the accused persons in her self defense and in this process she would have suffered injuries on her body.

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Learned counsel for the applicant further submits that there are contradictions in the the statements of complainant and mother of the deceased recorded under Section 161 Cr.P.C.. The complainant stated that when he reached the house of the deceased he found the body of the deceased was courtyard and in other hand the mother of the deceased stated that the body of the deceased was found outside of the house.

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Learned counsel for the applicant further submits that after due investigation by the Investigating Officer, only the applicant and his father, namely, Ramesh, were charge-sheeted and the name of Chhotkau (Jeth) and Chhotkau’s wife (Jethani) were exonerated by the Investigating Officer, which creates doubt about the veracity of allegations as levelled in the first information report by the complainant. No such demand of Maruri Car was ever made by the applicant or by his family members, and the allegations levelled in the first information report prima facie, appears to be false and fabricated and was an afterthought.

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Learned counsel for the applicant further submits that the father-inlaw (Ramesh) of the deceased has been granted bail by this Court vide order dated 09.12.2020 passed in Bail No. 7158 of 2020 on the ground that general allegation has been levelled against all the accused persons, named in the F.I.R. It has been further submitted that the case of the applicant is not on the worse footing than that of the co-accused, Ramesh, who has been granted bail, therefore, the applicant is also entitled to be released on bail by this Court sympathetically.

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It has further been argued by the learned counsel for the applicant that applicant is in jail since 27.05.2020 and he has already undergone a substantial period in imprisonment and in view of the para-2 of the judgment of Hon'ble Supreme Court in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463 , a prayer has been made to release the applicant on bail. Para-2 of the aforesaid judgment is being reproduced hereinbelow as under:-

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" 2. The appellants have been convicted under section 302/149, Indian Penal Code by the learned Sessions Judge and have been sentenced to imprisonment for life . Against the said conviction and sentence their appeal to the High Court is pending. Before the High court application for suspension of sentence and bail was filed but the High Court rejected that prayer indicating therein that the applicants can renew their prayer for bail after one. After the expiry of one year the second application was filed but the same has been rejected by the impugned order. It is submitted that the appellants are already in jail for over 3 years and 3 months. there is no possibility of early hearing of the appeal in the High Court. In the aforesaid circumstances the applicants be released on bail to the satisfaction of the learned Chief Judicial Magistrate, Sehore. the appeal is disposed of accordingly."

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Further, the learned counsel for the applicant has also placed reliance on para-2 of the judgment of Hon'ble Supreme Court in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 , which is being is reproduced herein below:-

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" 2. This is a case in which the appellant has been convicted u/s 304-B of the Indian Penal Code and sentenced to imprisonment for 7 years. It appears that so far the appellant has undergone imprisonment for about 2 years and four months. The High Court declined to grant bail pending disposal of the appeal before it. We are of the view that the bail should have been granted by the High court, especially having regard to the fact that the appellant has already served a substantial period of the sentence. In the circumstances, we direct that the bail be granted to the appellant on conditions as may be imposed by the District and Sessions Judge, Fridabad."

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Leaned counsel for the applicant further submitted that in view of the law laid down by the Hon'ble Supreme Court in the aforesaid cases the case of the applicant for grant of bail may be considered sympathetically, as the ratio of law is the same to be applicable in the case of applicant as he has already undergone a substantial period in imprisonment.

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Several other submissions regarding legality and illegality of allegations made in the F.I.R. have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon him. It has also been pointed out that the accused is not having any criminal history and he is in jail since 27.05.2020 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. has opposed the prayer for bail.

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After perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case, the allegations made in the F.I.R., the nature of evidence, the postmortem report of the deceased and the cause of death as alleged, the statements of complainant and mother of the deceased, the period of detention already undergone by the applicant, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence and also on the consideration that the co-accused has been granted bail on the ground that all the accused persons have been assigned general role and allegation including the present applicant, and also considering the observation given by the Hon'ble Supreme Court in the cases of Takht Singh (supra) , Kamal (supra) and larger mandate of Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the case of Dataram Singh Vs. State of U.P. and another, reported in (2018) 3 SCC 22 , this Court is of the view that the applicant may be enlarged on bail.

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The prayer for bail is granted. The application is allowed.

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Let the applicant, Subhash Goswami , involved in Case Crime No. 114 of 2020, under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act, Police Station Katra Bazar, District Gonda, be enlarged on bail on his executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

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(i) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(ii) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be

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exempted unless the court itself deems it fit to do so in the interest of justice.

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(iii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.

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(iv) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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(v) In case, the applicant misuses the liberty of bail 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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(vi) 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 default of this condition is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of his bail and proceed against him in accordance with law.

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(vii) The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad or certified copy issued from the Registry of the High Court, Allahabad.

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(viii) 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.

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It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant's bail.

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It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merit of the case.

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Order Date :- 11.02.2022 Arvind

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Digitally signed by ARVIND KUMAR SRIVASTAVA Date: 2022.02.14 15:50:49 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Subhash Goswami v. State of U.P.

Case brief

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Subhash Goswami v. State of U.P.

Case brief

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