Allowed

Abhishek @ Rahul Sharma v. State of U.P.

Allahabad HC24 Aug 2023BAIL/29440/2023

Case brief

AI extract

What is this about?

This court allowed a repeat bail application filed by a husband accused in a dowry death case. Despite the case being classified as a probable dowry death under Section 304B IPC, the convict was granted bail after over four years of incarceration, citing the fundamental right to speedy trial and clean antecedents.

What did the court decide?

Release on bail with personal bond and two sureties on conditions including not tampering with evidence and attending trial.

Abhishek @ Rahul Sharma Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:170933

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29440 of 2023

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Applicant :- Abhishek @ Rahul Sharma Opposite Party :- State of U.P. Counsel for Applicant :- Anurag Shukla,Ayush Mishra,Sunil Kumar Misra Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Supplementary affidavit filed by learned counsel for applicant today in Court is taken on record.

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Heard Mr. Sunil Kumar Misra, the learned counsel for applicant and the learned A.G.A. for State.

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Perused the Court.

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This repeat application for bail has been filed by applicant Abhishek @ Rahul Sharma, seeking his enlargement on bail in Case Crime No. 0672 of 2019 under Sections 498A, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Naubasta, District- Kanpur Nagar, during the pendency of trial i.e Sessions Trial No. 478 of 2019 (State Vs. Abhishek Sharma and others) under Sections 498A, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Naubasta, District- Kanpur Nagar.

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First bail application of applicant was rejected by this Court by a detailed order dated 24.01.2023 passed in Criminal Misc. Bail Application No. 2964 of 2021 (Abhishek @ Rahul Sharma Vs. State of U.P.). For ready reference, order dated 24.01.2023 is reproduced herein under:

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"This is the first bail application filed on behalf of the accused/applicant with a prayer to release the accused/applicant on bail in Case Crime No.0672 of 2019, under Sections 498A, 304-B of I.P.C. and Section 3/4 of the Dowry Prohibition Act, Police Station Naubasta, District Kanpur Nagar.

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Heard Mr. Amit Tripathi, learned counsel for the accused/applicant and Mr. Alok Kumar Tripathi, learned A.G.A. for the State and perused the material available on record.

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Learned counsel for the accused/applicant submitted that accused/applicant is innocent and has falsely been implicated in the crime, as the deceased committed suicide and he has no concern with the crime. He further submitted that accused/applicant is languishing in jail since 10.017.2019. Hence he may be enlarged on bail.

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Learned A.G.A. opposed the bail application and submitted that deceased died within seven years of marriage an unnatural death in her matrimonial home and there are allegations of demand of dowry in the FIR as well as in the statement of the complainant recorded under Section 161 Cr.P.C.. Hence the bail application of the accused/application should be rejected.

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Considered the rival submissions and perused the material available on record.

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It appears from the record that deceased died within seven years of marriage in her matrimonial home an unnatural death. The case of death is asphyxia as a result of ante-mortem hanging. There are allegations of demand of dowry in the FIR and in the statement of the victim recorded under Section 161 of Cr.P.C.

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Considering all these facts and circumstances of the case and also that accused/applicant is husband of the deceased and he had greater responsibility to safeguard the life of his wife, it does not appear just to enlarge the accused/applicant on bail.

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The prayer for release on bail of applicant Abhishek @ Rahul Sharma is declined and the bail application is rejecte"

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Learned counsel for applicant contends that though applicant is the husband of the deceased and a named as well as charge-sheeted accused yet he is liable to be enlarged on bail. Marriage of applicant was solemnized with deceased on 28.04.2018. However,

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just after expiry of a period of one year and two months from the date of marriage of applicant, an unfortunate incident occurred on 06.07.2019 in which the wife of applicant died as she committed suicide by hanging herself. Applicant was taken into custoday on 10.07.2019. As such, on date he has undergone more than four years of incarceration.

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Admittedly, as per post mortem report, the death of deceased is suicidal death. Bonafide of applicant is also explicit from the fact that except for the ligature mark no other ante mortem injury was found on the body of the deceased. The trial have already commenced and upto this stage only four prosecution witnesses of fact have been examined. Since the applicant is in jail therefore it cannot be said the applicant is responsible for the delay in conclusion of trial. It is thus urged that right to speedy trial is a fundamental right of an accused. To buttress his submission, he has relied upon the judgement of Apex Court in A.R. Antulay Vs. R. S. Nayak (1992) 1 SCC 225 . On the cumulative strength of above, it is thus urged that applicant is liable to be enlarged on bail. Even otherwise applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. On the cumulative strength of above, he therefore submits that applicant is liable to be enlarged on bail. In case the 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. for State have opposed the prayer for bail. He submits that since applicant is the husband of deceased, a named as well as the charge-sheeted accused therefore he does not deserve any indulgence by this Court. The death of deceased has occurred at her marital home within seven years of her marriage. As such, the death of deceased is a dowry death.

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Applicant is husband of the deceased. He is therefore under having burden to establish his innocence by virtue of Section 113B of Indian Evidence Act. Occurrence has taken place in the house of applicant, therefore, he is required to establish the manner of occurrence in terms of Section 106 of Indian Evidence Act. However, applicant has miserably failed to discharge the aforesaid burden therefore he does not deserve any sympathy by this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant with reference to the record at this stage.

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Having heard the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon consideration of material on record, evidence, nature and gravity of offence, accusations made as well as complicity of applicant coupled with the fact that prima facie the death of the deceased is a suicidal death, except for the ligature mark no ante mortem injury was found on the body of the deceased, applicant is in jail since 10.07.2019, as such, he has undergone more than four years of incarceration, trial is in progress, however, upto this stage, only four prosecution witnesses of fact have been examined, applicant is in custody, therefore, it cannot be said that applicant is responsible for the delay conclusion of trial, applicant has a fundamental right to speedy trial, the judgement of Apex Court in A.R. Antulay (supra) learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5) , the clean antecedents of applicant, the period of incarceration undergone but without expressing any opinion on the merits of the case, applicant

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has made out a case for bail.

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Accordingly, present application for bail is allowed .

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Let the applicant- Abhishek @ Rahul Sharma involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence.

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(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.

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(iii) Applicant will not indulge in any unlawful activities.

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(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.

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The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send him to prison

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Order Date :- 24.8.2023 YK

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Digitally signed by :- YASHWANT KUMAR High Court of Judicature at Allahabad

Abhishek @ Rahul Sharma v. State of U.P.

Case brief

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Abhishek @ Rahul Sharma v. State of U.P.

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