Kavita Singh Vs State of U.P.

Court No. - 66

Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19658 of 2021

Applicant :- Kavita Singh Opposite Party :- State of U.P.

Counsel for Applicant :- Anand Pati Tiwari,Ashwini Kumar Awasthi,Atharva Dixit,Rakesh Kumar Upadhyay Counsel for Opposite Party :- G.A.,Deepak Dubey

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Hon'ble Rajeev Misra,J.

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Heard Mr. V.P. Srivastava, learned Senior Counsel assisted by Mr. Anand Pati Tiwari, learned counsel for applicant, learned A.G.A. for State and Mr. Deepak Dubey, learned counsel for first informant.

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This application for bail has been filed by applicant Kavita Singh, seeking her enlargement on bail in Case Crime No. 185 of 2021 under sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station- Auraiya, District Auraiya during the pendency of trial.

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Perused the record.

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Learned A.G.A. has filed counter affidavit as well as supplementary counter affidavit to which rejoinder affidavit has been filed. Learned counsel for first informant has also filed counter affidavit to which rejoinder affidavit has been filed.

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It transpires from record that marriage of Jyoti was solemnized with Prabhat Singh the son of applicant on 4.12.2017. However, just after expiry of a period of three years and six months from the date of marriage of the son of applicant, an unfortunate incident occurred on 6.7.2021, in which the daughter-in-law of applicant died as she sustained gun shot injuries. The information regarding aforesaid incident was not given by applicant or any of her family members at the concerned Police Station but by the neighbour of applicant.

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Subsequent to above, Arvind Singh father of deceased lodged an F.I.R. dated 8.3.2021, which was registered as Case Crime No. 185 of 2021 under sections 498A, 304B IPC and Section 3/4 D.P. Act, Police Station- Auraiya, District Auraiya. In the aforesaid F.I.R. three persons namely, Prabhat Singh @ Gopak(husband), Kavita Singh (mohter-in-law), Sudheer Singh Kushwaha (father-in-law) of deceased have been nominated as named accused.

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The gravamen of the allegations made in aforesaid F.I.R. is to the effect that marriage of Jyoti daughter of first informant was solemnized with Prabhat on 4.12.2017. However, the in-laws of the daughter of first informant caused physical and mental cruelty upon the daughter of first informant for demand of additional dowry. The F.I.R. further states that named accused used to say that they have suffered consistent loss in business and there is extreme necessity of

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money. In furtherance of above, first informant sold his agricultural land for Rs. 23 lakhs. However irrespective of above, repeated threats were extended by sonin-law and other in-laws of daughter of first informant. Thereafter the jewelry of daughter of first informant was handed over to named accused, which was kept in security towards loan of Rs. 2,76,000/- However, irrespective of above, there was no change in the conduct of named accused towards daughter of first informant. Ultimately, the daughter of first informant was put to death.

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Subsequent to aforesaid F.I.R. Investigating Officer proceeded with statutory investigation of aforementioned Case Crime Number in terms of Chapter XII Cr.P.C. The inquest (panchayatnama) of the body of deceased was conducted on 8.3.2021. In the opinion of witnesses of inquest (panch witness), the nature of death of deceased was homicidal. Thereafter, the post-mortem of the body of deceased was conducted. In the opinion of autopsy surgeon, the cause of death of deceased was shock and haemorrhage as a result of ante mortem fire-arm injury. The autopsy surgeon found following ante-mortem injury on the body of deceased:

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"Wound of entry present on Rt. Forearm size of wound is 0.80.8 cm present 02 cm below from Rt. ear lole, around wound blcaking and fattousing present margin are (edges are) invested and lacerated,... in shape of wound exit is 02x02cm with underlying bone fracture two fragments of small size recovered from diseased skull"

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During course of Investigation, Investigating Officer examined first informant and other witnesses namely, Arvind Singh, Smt. Sunita Tomar, Smt. Renu, Sri Jitendra Tomar, Smt. Uma Devi, Smt. Deepika and Smt. Parul under section 161 Cr.P.C. On the basis of above and other material collected by Investigating Officer during course of investigation, which according to him is adverse to named accused he came to the conclusion that complicity of named accused in the crime in question is duly established. He, accordingly submitted charge sheet dated 7.5.2021, whereby all the three named accused have been charge sheeted under sections 498A, 304B IPC and Section 3/4 D.P. Act.

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Mr. V.P. Srivastava, learned Senior Counsel for applicant contends that applicant is mother-in-law of deceased. Applicant is a middle aged women aged about 45 years. He next contends that applicant is innocent. He has been falsely implicated in above mentioned case crime number. Allegations made in F.I.R. with regard to demand of dowry and commission of physical and mental cruelty upon deceased are false and concocted. The marriage of son of applicant was solemnized with deceased on 4.12.2017. However, since then up to date of her death, there is nothing on record to show that any complaint was filed with regard to alleged demand of dowry or commission of physical or mental cruelty upon deceased. Learned Senior Counsel then invited attention of Court to the post mortem report of deceased and on the basis of same, he submits that deceased has died on account of gun shot injuries. Reffering to the material on record (CCTV Footage) he submits that applicant cannot be held to be the author of the fatal gun shot injury. No recovery has been made from applicant. There is no eye witness of the occurrence either. Learned Senior Counsel for applicant

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has then invited attention of Court to the provisions contained in proviso to section 437 Cr.P.C. and on basis thereof he contends that since applicant is a lady, her liberty is liable to be protected. It is next contended that applicant is a woman of clean antecedents inasmuch as she has no criminal history to her credit except to present one. Applicant is in jail since 9.3.2021. As such, she has undergone more than one year of incarceration. In case, applicant is enlarged on bail, he shall not misuse the liberty of bail and shall co-operate with the trial.

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Per contra, the learned A.G.A. and Mr. Deepak Dubey, learned counsel for first informant have opposed the prayer for bail. They submit that applicant is mother-in-law of deceased. Specific allegations with regard to demand of dowry and commission of physical and mental cruelty upon daughter-in-law of deceased on account of non fulfilment of additional demand of dowry have been made jointly against applicant and two others. The criminality committed by named accused are interlinked and intervened. Occurrence has taken place in the house of applicant and within seven years of marriage. As such, by virtue of provisions contained inSections 106 and 113B of Evidence Act, applicant is under burden to dislodge the manner of occurrence and also prove her innocence. However, up to this stage, the applicant has failed to discharge her aforesaid burden. She therefore does not deserve any indulgence of this Court. However, he could not dispute the factual and legal submissions urged by learned Senior Counsel for applicant.

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In rejoinder, Mr. V.P. Srivastava, the learned Senior Counsel for applicant has rejoinded the submission earlier urged by him. He has laid much emphasis upon Section 437 Cr.P.C.

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Having heard learned Senior Counsel for applicant, learned A.G.A. for State, leawrned counsel for first informant and upon perusal of material brought on record as well as the complicity of applicant and accusationd made but without making any comment on the merits of the case, applicant has made out a case for bail. Accordingly, bail application is allowed.

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Let the applicant Kavita Singh , 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 which are being imposed in the interest of justice:-

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(i) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE 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/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

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(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER

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SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

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(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) 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 THE HIM/HER IN ACCORDANCE WITH LAW.

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However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his/her bail so granted by this court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

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Order Date :- 8.4.2022 Arshad

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Digitally signed by ARSHAD MAHMOOD Date: 2022.04.12 16:46:42 IST Reason: Location: High Court of Judicature at Allahabad

Kavita Singh v. State of U.P.

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Kavita Singh v. State of U.P.

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