Allowed

Devendra Awasthi v. State of U.P.

Allahabad HC29 Jul 2022/7792/2020

Case brief

AI extract

What is this about?

In a bail application under sections 498-A and 304-B IPC regarding the death of the wife by hanging, the court considered the medical evidence pointing to suicide, the absence of specific allegations against the husband, and prior similar decisions. The court granted bail.

What did the court decide?

The applicant Devendra Awasthi is enlarged on bail on executing a personal bond and two sureties, subject to strict conditions of appearance and non-interference.

Devendra Awasthi Vs State of U.P. — Matrimonial and Divorce | Allahabad HC (2022)

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Court No. - 13

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 7792 of 2020

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Applicant :- Devendra Awasthi Opposite Party :- State of U.P. Counsel for Applicant :- Ankit Srivastava,Anuj Dayal,Manish Srivastava,Sushil Kumar Mishra Counsel for Opposite Party :- G.A.

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Hon'ble Shamim Ahmed,J.

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Heard Shri Anuj Dayal, learned counsel for the applicant, Shri Shiv Ram Tiwari, the learned A.G.A. for the State and perused the record.

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The applicant, Devendra Awasthi, has moved the present bail application seeking bail in Case Crime / F.I.R. No. 128 of 2020 under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act at Police Station - Pisawan, District - Sitapur.

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As per the version of the First Information Report dated 30.03.2020, the marriage of deceased, Sarita, was solemnized with the accused-applicant about two years back. It has been alleged in the F.I.R. that the complainant gave Rs. 2,50,000/-, a gold chain, a gold ring, a four wheeler vehicle and other domestic household goods in marriage and subsequently the inlaws of the applicant along with the applicant were not satisfied with the dowry. Thereafter, a demand of additional Rs. 5,00,000/- were being made and due to non-fulfillment of demand of dowry, the deceased Sarita, was killed and hanged from the fan.

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The contention of learned Counsel for the applicant is that the applicant along with other family members namely Dev Rishi, brother of the applicant, and Aarti, the Chachi (Aunty) of the applicant, were falsely implicated in the present case and a general allegation has been leveled against all the co-accused named in the F.I.R.. There is no specific averment as to who demanded the amount of Rs. 5,00,000/- and for what purpose the demand was made? There was no evidence or allegation that soon before her death, she was subjected to any cruelty or harassment by her husband or other co-accused named in the First Information Report in connection with the demand of dowry.

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Learned Counsel for the applicant also submits that the F.I.R. was lodged on 30.03.2020 at around 17:10 hours, the offence is

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alleged to have been taken place at 16:00 hours. The inquest was conducted and at the time of the inquest, the family members of the deceased, Sarita, were present. Learned counsel for the applicant also pointed out that all the five 'Panch' were from the family members of the deceased and they stated that the death was caused by hanging by use of saree.

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Learned Counsel for the application further added to his submission that it is a case of suicide and the deceased committed suicide by hanging herself in the roof by fan and when the applicant came to know about the alleged incident, he immediately informed the family members of the deceased who came on the spot. The postmortem of the deceased was conducted on 31.03.2020 wherein the Doctor opined that the immediate cause of death is asphyxia due to ante mortem hanging. It has also been submitted that except one oblique ligature mark of size 26 c.m. x 2.5 c.m. all around the neck no other injury was present on the body of the deceased. As per the postmortem report, it was reveled that the deceased has not been subjected to any physical cruelty or injuries before the death. Moreover, the allegation in the F.I.R. to the effect that the deceased was killed and hanged was also baseless.

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Learned Counsel for the applicant further contends that the deceased was suffering from neurological disorder due to which there were symptoms of bipolar syndrome, due to the said disorder, the deceased was having tendency of committing suicide and similar activities. The applicant who is the husband made an effort for the treatment of the disease and the Doctor also advised not to leave the deceased alone. It was further argued that the family of the deceased has completely ignored the deceased due to which the deceased was suffering from depression and was weak mentally and due to the said reasons, the deceased committed suicide by hanging herself and the applicant and his family has no role in the death of the deceased.

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Learned Counsel for the applicant submitted that except one oblique ligature mark of size 26 c.m. x 2.5 c.m. all around the neck no other injury was present on the body of the deceased. In support of his argument learned counsel for the applicant placed reliance upon the extract of Modi's Medical Jurisprudence, wherein definition of hanging has been described and as per the postmortem report of the deceased it is identical to the definition of hanging given in Modi's Jurisprudence. Learned counsel for the applicant submits that since the definition of hanging given in Modi's Jurisprudence and the postmortem report of the deceased are identical, it appears a case of committing suicide by hanging and not the

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murder.

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Learned counsel for the applicant further submits that on similar allegations as leveled in the First Information Report and the statement of the informant under Section 161 Cr.P.C. against the applicant and his brother, Dev Rishi, and Chachi, the Investigating Officer dropped the name of Chachi and only charge sheeted the applicant and his brother, Dev Rishi, whereas the brother against whom a similar allegation has been leveled was already granted bail by a Co-ordinate Bench of this Court vide order dated 25.06.2020 in Bail No. 4070 of 2020, a copy of the same has already been annexed as Annexure - 8 to the affidavit filed in support of the bail application. As general role has been assigned to all the accused persons including the applicant who is the husband of the deceased, therefore, the case of the applicant is not on the worse footing than that of the other co-accused who have already been enlarged on bail, therefore, the applicant's bail application may be considered by this Court sympathetically and the applicant may also be enlarged on bail.

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Several other submissions in order to demonstrate the falsity of the allegations made against the applicant 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, which fact has been stated in Paragraph - 19 of the affidavit filed in support of the bail application. The applicant is in jail since 10.05.2020 and that in the wake of heavy pendency of cases in the Court, there is no blinking chances of any early conclusion of trial as till date not a single witness has been examined.

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Learned A.G.A. while opposing the prayer for bail of applicant submitted that the death of the deceased had occurred within two years of her marriage and applicant is the husband of the deceased, therefore, he is not entitled to be released on bail, but he has not disputed that the brother of the applicant have been enlarged on 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

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conclusion of trial and also the absence of any convincing material to indicate the possibility of tampering with the evidence, considering the fact that there is no specific allegation against the applicant; except only one ligature mark present all around the neck of the deceased no other injury found on the person of the deceased; cause of death is asphyxia due to ante mortem hanging; brother of the applicant having similar allegation has already been granted bail by a coordinate Bench of this Court; and considering the fact that applicant has already undergone a substantial period of incarceration; 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 case of Dataram Singh vs. State of UP 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, Devendra Awasthi involved in Case Crime / F.I.R. No. 128 of 2020 under Sections 498-A, 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act at Police Station - Pisawan, District - Sitapur, 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)

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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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(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 :- 29.7.2022 Lokesh Kumar

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Digitally signed by LOKESH KUMAR Date: 2022.08.01 22:58:02 IST Reason: Location: High Court of Judicature at Allahabad, Lucknow Bench

Devendra Awasthi v. State of U.P.

Case brief

What is this about?

What did the court decide?

Devendra Awasthi v. State of U.P.

Case brief

What is this about?

What did the court decide?

What the court decided

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