High Court allowed an application for bail filed by a husband charged with abetment to suicide under Section 306 IPC. The court found prima facie no evidence of instigation or conspiracy and noted clean antecedents.
Applicant released on bail by proposing a personal bond with two heavy sureties subject to conditions regarding trial attendance and conduct.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Neutral Citation No. - 2023:AHC:156860
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29591 of 2023
Applicant :- Hasmuddin Opposite Party :- State of U.P. Counsel for Applicant :- Rajan Upadhyay,Sr. Advocate Counsel for Opposite Party :- G.A.,Rajeev Kumar Rai
Hon'ble Rajeev Misra,J.
Heard Mr. Rajan Upadhyay, the learned counsel for applicant, the learned A.G.A. for State and Mr. Rajeev Kumar Rai, the learned counsel representing first informant.
Perused the record.
This bail application has been filed by the applicant Hasmuddin seeking his enlargement on bail in Case Crime No. 45 of 2023, under Section 306 IPC, P.S. Jarcha, District Greater Noida Police Commissionerate Gautam Budh Nagar during the pendency of trial.
Record shows that in respect of an incident, which is alleged to have occurred on 7.2.2023, a delayed F.I.R. dated 3.3.2023 was lodged by first informant Nasim (brother of the deceased) and was registered as Case Crime No. 45 of 2023, under Section 306 IPC, P.S. Jarcha, District Greater Noida Police Commissionerate Gautam Budh Nagar. In the aforesaid F.I.R., five persons namely Hasimuddin (husband), Ajimuddin (father-in-law), Mayara (mother-in-law), Pappu (elder brother-in-law) (Jeth) and Nazma (Jethani) have been nominated as named accused.
The gravamen of the allegations made in the F.I.R. is to the effect that marriage of Nasrin, younger sister of first informant was solemnized with Hasmuddin. However, the F.I.R. further records that named accused regularly assaulted the sister of first informant. Ultimately, a phone call was made at around 10.25 p.m. of 7.2.2023 that the sister of first informant has died on account of heart attack.
It is apposite to mention here that prior to the lodging of
aforementioned F.I.R., the inquest (panchayatnama) of the body of the deceased was conducted on the information of first informant. In the opinion of witnesses of inquest (panch witnesses), the nature of death of the deceased was characterized as suicidal. Thereafter, the post mortem of the body of the deceased was conducted. In the opinion of Autopsy Surgeon who conducted autopsy of the body of the deceased, the cause of death of deceased could not be ascertained and therefore, viscera of the deceased was preserved. However, the Autopsy Surgeon found following ante mortem injuries on the body of the deceased:-
Ligature mark in the form of present abrasion, 24 cm x 3.5 cm, incomplete, obliquely present over upper over third of neck above thyroid cartilage. The mark of dried, hard and situated 5.5 cm from chin, 34 cm from right angle of mandible, 2 cm from left angle of middle and vanishes just below the mastoid promises present on left side and hair line over neck on right side of lacerated dissection on neck the mark is parchmetised and dried on further dissection underlying tissue are pale large thyroid tracheal stomach on intact. Hyoid bone is intact ligature material is not present.
During the course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr. P. C., who have supported the F.I.R. As per viscera report dated 19.7.2023 a foreign chemical compound namely Organo Chloro Insecticide was found in the body parts of the deceased. Ultimately, Investigating Officer submitted the charge sheet dated 9.6.2023 only against applicant, whereas the remaining named accused were exculpated.
Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused, yet he is liable to be enlarged on bail. Referring to the F.I.R. and the statements of witnesses recorded under Section 161 Cr. P. C., he submits that upto this stage, no offence as complained of is made out against the applicant. An offence under Section 306 IPC has to be examined on a conjoint reading of Sections 107 and 306 IPC. However, upto this stage, there is nothing on record to show that the applicant has abetted, instigated or conspired in the commission of crime, nor it can be conclusively concluded that the deceased committed suicide on account of an immediate act of applicant. There is nothing on record to infer instigation against applicant on account of
his conduct. To buttress his submission, he has referred to the following judgements:-
(1) Sarvesh Vs. State of U.P., 2018 ADJ Online 0163
(2) Kanchan Sharma Vs. State of U.P. and another, 2021 SCC OnLine SC 737
(3) Mirza Iqbal alias Golu and another Vs. State of U.P. and another, 2021 SCC OnLine SC 1251
(4) Mariano Anto Bruno and another Vs. Inspector of Police, 2022 SCC OnLine SC 1387
(5) Kashibai and others Vs. State of Karnataka, 2023, SCC, OnLine SC 575
(6) Ranganayaki Vs. State, 2004 (12) SCC 521
Even otherwise, the marriage of the applicant with the deceased was solemnized 22 years ago. The F.I.R. does not assign any reason as to why the deceased was assaulted regularly by the named accused in the F.I.R. He, therefore, contends that vague and false allegations have been made only to give colour to the F.I.R. The fallacy in the F.I.R. is further explicit from the fact that on the same evidence the other named accused have been exculpated. Even otherwise, applicant is a man of clean antecedents, having no criminal history to his credit except the present one. Applicant is in jail since 16.3.2022. As such, he has undergone more than 4 1/2 months of incarceration. The police report in terms of Section 173 (2) Cr. P. C. i.e. charge sheet has already been submitted. However, upto this stage, no such circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. He has also referred to the judgement of the Supreme Court in S. Subhash Chandra Gangwal Vs. State of Maharashtra, 2023 Livelaw (S.C.) 373 (para 5). On the above premise, 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 cooperate with the trial.
Per contra, the learned A.G.A. and the learned counsel representing first informant have opposed the prayer for bail. They submit that since the applicant is a named as well as charge sheeted accused, therefore, he does not deserve any indulgence by this Court. Applicant is the husband of the deceased. The occurrence has taken place inside the house of
the applicant. Since the applicant is an inmate of the house, therefore, the burden is upon the applicant to explain the manner of occurrence in terms of Section 106 of the Evidence Act. However, the applicant has miserably failed to discharge the said burden upto this stage. As such, no sympathy be shown by the Court in favour of applicant. However, they could not dislodge the factual/legal submissions urged by the learned counsel for applicant with reference to the record at this stage.
Having heard the learned counsel for applicant, the learned A.G.A. for state, the learned counsel for first informant, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made and coupled with the fact that though applicant is the husband of the deceased, a named and charge sheeted accused, yet prima facie no offence under Section 306 IPC is established against the applicant, inasmuch as as prima facie no abetment, instigation or conspiracy is established against the applicant, nothing could be pointed out from the record to show that the deceased committed suicide on account of an immediate act of applicant, the judgements of the Court as noted above, there is nothing on record to infer instigation against applicant on account of his conduct, the marriage of the applicant was solemnized with the deceased 22 years ago, the F.I.R. does not assign any reason for commission of physical cruelty upon the deceased, the clean antecedents of the applicant, the period of incarceration undergone and in spite of the fact that the charge sheet has been submitted against applicant and therefore, entire evidence sought to be relied upon by the prosecution against applicant stands crystallized but the learned A.G.A. and the learned counsel for first informant could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgement of the Supreme Court in S. Subhash Chandra Gangwal Vs. State of Maharashtra (supra), but without making any comments on the merits of the case, the applicant has made out a case for bail.
Accordingly, the bail application is allowed.
Let the applicant Hasmuddin involved in aforesaid case crime number, be released on bail on his furnishing a
personal bond with two heavy 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 :-
(i) The applicant shall file an undertaking to the effect that he 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.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under section 229-A I.P.C..
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under 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, in accordance with law, under section 174-A I.P.C.
(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 him in accordance with law.
(v) The trial court may make all possible efforts/endeavour and try to conclude the trial within a period of one year after the release of the applicant.
However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on his 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.
Order Date :- 4.8.2023 HSM
Digitally signed by :- HARI SHANKER MISHRA High Court of Judicature at Allahabad
3 issues framed by the court
Whether the applicant is entitled to bail despite being a charge-sheeted accused in a negligence suicide case under Section 306 IPC.
Whether the failure to explain the manner of occurrence under Section 106 of the Evidence Act precludes the grant of bail.
Whether the circumstances record necessitate custodial arrest during the pendency of the trial.
Colour shows how this judgement treated each authority
Sarvesh Vs. State of U.P., 2018 ADJ Online 0163Explained¶17
Kanchan Sharma Vs. State of U.P. and another, 2021 SCC OnLine SC 737Explained¶18
Mirza Iqbal alias Golu and another Vs. State of U.P. and another, 2021 SCC OnLine SC 1251Explained¶19
Mariano Anto Bruno and another Vs. Inspector of Police, 2022 SCC OnLine SC 1387Explained¶20
Kashibai and others Vs. State of Karnataka, 2023, SCC, OnLine SC 575Explained¶21
Ranganayaki Vs. State, 2004 (12) SCC 521Explained¶22
S. Subhash Chandra Gangwal Vs. State of Maharashtra, 2023 Livelaw (S.C.) 373Explained¶23
6 provisions across 3 enactments
Hasmuddin
Rajeev Misra
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
Rajeev Misra
Parties & counsel
