Allowed

Lilawati Devi and Another v. State of U.P.

Allahabad HC16 Aug 2023BAIL/30960/2023

Case brief

AI extract

What is this about?

Hon'ble Single Judge allowed bail to applicants Lilawati Devi and Sanjay Yadav in a dowry death case invoking proviso to Section 437 Cr.P.C. Court noted vague FIR allegations, clean antecedents, and lack of necessity for custodial arrest despite opposing submissions.

What did the court decide?

Release of applicants on bail upon furnishing personal bond and two sureties each subject to specific conditions.

Lilawati Devi and Another Vs State of U.P. — Dowry and Cruelty | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:164119

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Court No. - 65

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 30960 of 2023

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Applicant :- Lilawati Devi And Another Opposite Party :- State of U.P. Counsel for Applicant :- Sudhir Kumar Agarwal,Saurabh Kumar Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heard Mr. Sudhir Kumar Agarwal, the learned counsel for applicants and the learned A.G.A. for State.

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Perused the Court.

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This application for bail has been filed by applicants-Lilawati Devi and Sanjay Yadav, seeking their enlargement on bail in Case Crime No. 21 of 2023 under Sections 498A, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Doodhi, District- Sonbhadra, during the pendency of trial.

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Record shows that marriage of Suraj Deo Yadav, son of applicant-1 and brother of applicant-2 was solemnized with Phoolmati on 07.03.2020. However, just after expiry of a period of three years from the date of marriage of son of applicant-1, an unfortunate incident occurred on 26.02.2023, in which the daughter-in-law of applicant-1 Phoolmati Devi namely committed suicide by consuming some poisonous substance.

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The information regarding aforesaid occurrence at the concerned police station was given by applicants On the said information, inquest (Panchnama) of the body of deceased was conducted. In the opinion of the witnesses of inquest( Panch witnesses), the nature of death of the deceased could not be

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categorised as to whether it is homicidal or suicidal.

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After aforesaid proceedings had been completed the first informant Kalawati lodged a delayed F.I.R. on 27.02.2023 which was registered as Case Crime No. 21 of 2023 under Sections 498A, 304B I.P.C. and Sections 3/4 Dowry Prohibition Act, Police Station-Doodhi, District- Sonbhadra,. In the aforesaid F.I.R. three Suraj Deo Yadav (Hasband), Lilawati Devi(mother-in-law) and Sanjay Yadav(Devar) of the deceased have been nominated as named accused.

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The gravamen of the allegations made in the F.I.R. is to the effect that marriage of the daughter of first informant was solemnized with Suraj Yadav in accordance with Hindu Rites and Customs. Physical and mental cruelty was committed upon thedaughter of first informant on account of demand of additional dowry. FI.R. further records that demand of money and a vehicle was regularly raised. Ultimately poison was administered to the daughter of first informant on account of which she died.

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Subsequent to the aforesaid F.I.R., Investigating Officer proceeded with statutory investigation of aforesaid case crime number in terms of Chapter XII Cr.P.C. Post-mortem of the body of the deceased was conducted on 28.02.2020. The Autopsy Surgeon, who conducted the post-mortem of the body of the deceded did not find any ante-mortem injury on the body of the deceased. Furthermore the cause of death of the deceased could be ascertained therefore viscera of the deceased was preserved. Viscera report dated 28.03.2023 was subsequently submitted. As per the said viscera report, a foreign substance i.e. Aluminium Phosphide was found in the body parts of the deceased sent for chemical examination.

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During course of investigation, Investigating Officer examined first informant and other witnesses under Section 161 Cr.P.C., who have substantially supported the F.I.R. On the basis of above and other material collected by Investigating Officer during the course of investigation, he came to the conclusion that complicity of named accused is fully established in the crime in question. He accordingly submitted the charge-sheet dated02.04.2023 whereby all the named accused have been charge sheeted under Sections 498A, 304B I.P.C. and Section 3/4 D. P. Act.

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Learned counsel for applicants submits that though the applicants are named as well as charge sheeted accused yet they are liable to be enlarged on bail. Applicant-1 Lilawati Devi is the mother in law of the deceased whereas applicant-2 is the devar of the deceased. He has then invited the attention of Court to the provisions contained in proviso to Section 437 Cr.P.C. and on basis thereof he submits that since applicant-1 Lilawati is a lady, she is, therefore, liable to be enlarged on bail. It is then contended that the deceased was a short tempered lady and she has taken the extreme step of terminating her life by consuming Aluminium Phosphide. The death of deceased is prima facie suicidal in nature inasmuch as no external or external ante-mortem injury was found on the body of the deceased by the autopsy surgeon. The same depicts the bonafie of applicants. Applicants cannot be said to be the beneficiary of the alleged demand of dowry. No abetment, instigation or conspiracy could be inferred against applicants from the record either. Allegations with regard to demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non-fulfilment of additional demand of dowry are vague and bald allegation as they are devoid of material particulars. As such, the same are liable to be ignored by this Court

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at this stage in view of the law laid down by Apex Court in Kahkashan Kausar @ Sonam and others Vs. State of Bihar and Others, (2022) 6SCC 599 . It is lastly submitted that applicants are men of clean antecedents inasmuch as they have no criminal history to their credit except the present one. Applicants are in custody since 06.03.2023. As such, applicants have undergone more than five months of incarceration. The police report (charge sheet) has already been submitted therefore, the entire evidence sought to relied upon by the prosecution against applicant stands crystallised. Upto this stage, no such circumstance has merged on the basis of which it can be said that the custodial arrest of applicant is absolutely necessary during the pendency of trial. He therefore submits that applicants are liable to be enlarged on bail. In case the applicants are enlarged on bail, they shall not misuse the liberty of bail and shall co-operate with the trial. 11. Per contra, the learned A.G.A. for State has opposed the prayer for bail. He submits that since the applicants are named as well as charge-sheeted accused, therefore, they do not deserve any indulgence by this Court. The deceased was a young lady. The death of deceased has occurred at her marital home and within seven years of her marriage. As such, the death of deceased is a dowry death. Applicants are the mother-in-law and devar of the deceased. As such they are under burden to establish their innocence by virtue of Section 113B of Indian Evidence Act. Occurrence has taken place in the house of applicants, therefore, they are required to establish the manner of occurrence under Section 106 Indian Evidence Act. However, they have not discharged the aforesaid burden therefore they do not deserve any indulgence by this Court. However, they could not dislodge the factual and legal submissions urged by learned counsel for

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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, 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 applicant -1 Lilawati Devi is the mother in law of deceased, therefore, she is entitled to the benefit of the provisions contained in proviso to section 437 Cr.p.C, applicant-2 is devar of deceased, therefore, they cannot be said to be the beneficiary of the additional demand of dowry, the husband of the deceased is already languishing in jail, allegations made in the F.I.R. with regard to demand of additional dowry and commission of physical and mental cruelty upon deceased on account of non-fulfilment of additional demand of dowry are vague and bald allegation as they are devoid of material particulars, the police report (charge-sheet) in terms of Section 173 (2) Cr.P.C. has already been submitted therefore the entire evidence sought to relied upon by the prosecution against applicant stands crystallised but inspite of above, no such circumstance from the record could be pointed out by the learned A.G.A. necessitating the custodial arrest of applicant during the pendency of trial, the judgement of Apex Court in Kahkashan Kausar @ Sonam and others(supra), the clean antecedents of applicant, the period of incarceration undergone but without expressing any opinion on the merits of the case, applicant has made out a case for bail.

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Accordingly, present applications for bail are allowed .

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Let the applicant- Lilawati Devi and Sanjay Yadav involved in aforesaid case crime number be released on bail on their furnishing a personal bond and two sureties each in the like

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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) Applicants will not tamper with prosecution evidence.

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(ii) Applicants 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) Applicants will not indulge in any unlawful activities.

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(iv) Applicants 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 them to prison

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Order Date :- 16.8.2023 YK

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

Lilawati Devi and Another v. State of U.P.

Case brief

What is this about?

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Lilawati Devi and Another v. State of U.P.

Case brief

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