Allowed

Raj Kumar v. State of U.P.

Allahabad HC16 Aug 2022/6815/2019

Case brief

AI extract

What is this about?

In a bail application under Sections 498-A and 304-B IPC regarding a dowry death, the High Court of Allahabad granted bail. The court noted that key prosecution witnesses turned hostile and a co-accused had already been released, leading to a favorable bail view for the applicant.

What did the court decide?

The applicant was enlarged on bail on execution of a personal bond and two sureties, subject to specific conditions regarding court appearance and conduct.

Raj Kumar Vs State of U.P. — Domestic Violence | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 6815 of 2019

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Applicant :- Raj Kumar Opposite Party :- State of U.P. Counsel for Applicant :- Alok Kr. Misra Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Pleadings are complete and have already been exchanged between the parties.

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Heard Shri Alok Kumar Misra, the learned counsel for the applicant, Shri Nirmal Kumar Pandey, the learned A.G.A. for the State and perused the record.

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The applicant, Raj Kumar , has moved the present bail application seeking bail in Case Crime No. 89 of 2018, under Sections 498-A, 304-B I.P.C. read with Section 3/4 of Dowry Prohibition Act, Police Station Mailani, District Lakhimpur Kheri.

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Learned counsel for the applicant submits that applicant is the husband of the deceased and their marriage was solemnized on 18.02.2017. The informant, who is the father of the deceased lodged a first information report dated 14.04.2018 against the applicant, his father and two brothers, regarding causing cruelty to the deceased who was the wife of the applicant and giving her poison for non fulfillment of demand of additional dowry in the form of motorcycle and mobile phone. It was further alleged in the first information report that brother and father of applicant were having illicit relations with the deceased.

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Learned counsel for the applicant further submits that the allegation of demand of dowry is false and fabricated. No such demand was ever made by the applicant or his family members, even no one has administered the poison to the deceased. The entire allegation is false, as the deceased was having some stomach problem, for which she was regularly taking medicines, and under some misconception she has taken poison in place of medicine and died. As per the postmortem report of the deceased her cause of death was not ascertained, therefore, viscera was preserved, and as per the viscera report aluminium phosphide was found in her stomach which she has taken under some misconception of medicines.

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Learned counsel for the applicant further submits that the statement of informant was recorded under Section 161 Cr.P.C. wherein he has repeated the same version of the F.I.R. Witnesses, Ramesh and Gorang in their statements have clearly stated that the deceased was in habit to take some drug/ medicines and they have not stated this fact that the family members of applicant had given poison to the deceased or caused cruelty with her.

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Learned counsel for the applicant further submits that statement of informant (P.W.1) was recorded before the court below on 06.11.2020 in which he has clearly stated that his daughter was having some stomach problem, for that she always complained to him and used to take medicines, and under some confusion she took some medicine which was in the form of poison and she died, he further states that no such demand was ever made by the applicant or his family members for additional dowry, nor they killed the deceased by giving her poison. Thus, the first informant (P.W.1) has been declared hostile.

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Learned counsel for the applicant further submits that mother of the deceased (P.W.2) in her statement recorded before the court below on 02.12.2020 has also stated same thing that there is no role of the applicant or his family members in administering poison to the deceased, she was having stomach problem and under some misconception she consumed the poison. No such demand of additional dowry was ever made by the applicant or his family members in the form of motorcycle or mobile phone. Thus, mother of the deceased (P.W.2) has also been declared hostile.

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Learned counsel for the applicant further submits that the witnesses, namely, Ashutosh (P.W.3), who was brother-in-law of the deceased, and Ramesh (P.W.4) in their statements recorded before the court below on 04.12.2021 and 06.12.2021, respectively, have also not supported the prosecution case and have been declared hostile.

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Learned counsel for the applicant further submits that the witnesses, P.W.1, P.W.2, P.W.3 and P.W.4, have not supported the prosecution case and in their statements they have clearly stated that applicant or his family members have not given poison to the deceased and she consumed the poison herself under some misconception of medicine as she was regularly taking medicines regarding her stomach problem, nor there was any demand of additional dowry made by the applicant or his family members. The other named accused, namely, Mukesh and Manoj were not charge sheeted by the Investigating Officer.

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Learned counsel for the applicant further submits that on similar footing and on similar allegations the father-in-law of the deceased, who is the father of the present applicant, namely Samiran, has already been granted bail by a coordinate Bench of this Court vide order dated 08.01.2019 Bail No. 9994 of 2018, therefore, the case of the applicant is not on the worse footing than that of the co-accused, who has already been granted bail by this Court, therefore, the applicant is also entitled to be enlarged on bail on the ground of party by this Court sympathetically.

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Learned counsel for the applicant further submits that the applicant is in jail since 08.10.2018 and has by now done a substantial period of incarceration. In support of his argument, he has placed reliance of Hon'ble Apex Court judgment in the case of Kamal Vs. State of Haryana, 2004 (13) SCC 526 and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment as under :-

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"2. This is a case in which the appellant has been convicted u/s 304-B of the India 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, Faridabad."

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Learned counsel for the applicant has also placed reliance of Hon'ble Apex Court judgment in the case of Takht Singh Vs. State of Madhya Pradesh, 2001 (10) SCC 463 , and submitted that the Hon'ble Apex Court was pleased to observe in paragraph no. 2 of the judgment 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 year. 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

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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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Learned counsel for the applicant further submits that ratio of law applicable in above those cases is also applicable in the case of the applicant, therefore, the applicant be enlarged on bail by this Court sympathetically.

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Several other submissions regarding legality and illegality of the 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. The applicant undertakes that in case he is released on bail he will not misuse the liberty of bail and will cooperate in trial. It has also been pointed out that the applicant is not having any criminal history, which fact has been stated in para-10 of the affidavit filed in support of the bail application. The applicant is in jail since 08.01.2018 and in the wake of heavy pendency of cases in the courts, there is no likelihood of any early conclusion of trial.

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Learned A.G.A. has opposed the prayer for bail, but has not disputed that informant, P.W.1, who is the father of the deceased, P.W.2, who is the mother of the deceased and P.W.3 who is the brother-in-law of the deceased while giving their statements before the court below have not supported the prosecution case and have been declared hostile and similarly circumstanced co-accused, Samiran, who is the father-in-law of the deceased and father of the applicant, has already been granted 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 nature of evidence, the period of detention already undergone, the unlikelihood of early conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence; considering the fact that informant, P.W.1, who is the father of the deceased, P.W.2, who is the mother of the deceased and P.W.3 who is the brother-in-law of the deceased while giving their statements before the court below have not supported the prosecution case and have clearly stated that applicant has not administered poison to he deceased and have

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been declared hostile; it was also the case of the prosecution that deceased was having some stomach problem for which she used to take some medicines and under some misconception she consumed the poison considering it to be some medicine; the co-accused, Samiran, who is the father of applicant, against whom same allegation was levelled, has already been granted bail by a coordinate Bench of this Court and the case of applicant is not on worse footing than that of the co-accused, Samiran, as well as considering the larger mandate of the Article 21 of the Constitution of India and the law laid down by the Hon'ble Apex Court in the cases of Kamal (supra), Takht Singh (supra) and 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, Raj Kumar , involved in Case Crime No. 89 of 2018, under Sections 498-A, 304-B I.P.C. read with Section 3/4 of Dowry Prohibition Act, Police Station Mailani, District Lakhimpur Kheri, 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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(1) The applicant will not make any attempt to tamper with the prosecution evidence in any manner whatsoever.

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(2) The applicant will personally appear on each and every date fixed in the court below and his personal presence shall not be exempted unless the court itself deems it fit to do so in the interest of justice.

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

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

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(5) 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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(6) 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

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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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(7) 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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(8) 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 :- 16.8.2022 Mustaqeem

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Digitally signed by MOHD MUSTAQEEM KHAN Date: 2022.08.18 15:32:41 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Raj Kumar v. State of U.P.

Case brief

What is this about?

What did the court decide?

Raj Kumar v. State of U.P.

Case brief

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What did the court decide?

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