Court rejected an application for bail filed by the husband of a deceased woman in a dowry death case. The court held that the unexplained delay in FIR coupled with the nature of offence and the applicant's failure to explain the manner of death precluded grant of bail.
Bail application rejected; applicant directed to remain in custody pending trial.
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Neutral Citation No. - 2023:AHC:182285
Court No. - 65
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 36309 of 2023
Applicant :- Anil Opposite Party :- State of U.P. Counsel for Applicant :- Ravindra Sharma Counsel for Opposite Party :- G.A.
Hon'ble Rajeev Misra,J.
Heard Mr. Ravindra Sharma, the learned counsel for applicant and the learned A.G.A. for State.
This application for bail has been filed by applicant-Anil seeking his enlargement on bail in Case Crime No.227 of 2019, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, Police Station Bisauli, District Budaun, during the pendency of trial.
Perused the record.
It transpires from the record that marriage of applicant was solemnized with Geeta (the daughter of first informant) on 27.06.2017. However, just after expiry of a period of two years and two months from the date of marriage of applicant, an unfortunate incident occurred on 30.08.2019 in which the wife of the applicant died. The information regarding aforesaid occurrence at the concerned police station was not given by the applicant or any of his family members but by the father of the deceased, namely, Meharban Singh.
On the aforesaid information, the inquest of the body of deceased was conducted on 30.08.2019 itself. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was characterized as homicidal. Thereafter, the post mortem of body of the deceased was conducted on the next day i.e. 31.08.2019. In the opinion of the autopsy surgeon, who conducted autopsy of the body of deceased, the cause of death of deceased was opined as asphyxia as a result of ante-mortem throttling. The Doctor, who conducted autopsy of the body of deceased, found following antemortem injuries on her body :-
"1. Contusion of size 1.0 cm x 0.8 cm on chin about 1.0 cm below of mid of chin.
2. 0.5 cm x 0.5 cm contusion on side of neck, just of mandible at 7.0 cm from ear lobule.
3. 2.0 cm x 1.0 cm contusion on side of neck at 7.0 cm from left ear lobule."
After about nine days from the date of occurrence, a delayed first information report dated 07.09.2019 was lodged by first informant, namely, Meharban Singh (father of the deceased), which was registered as Case Crime No.0227 of 2019, under Sections 498-A, 304-B IPC and Section 3/4 Dowry Prohibition Act, police station Bisauli, district Budaun. In the aforesaid first information report, five persons, namely, Anil-husband (applicant herein); Smt. Angura @ Urmila-mother-in-law; Sunil-Devar; Prem Singh-father-in-law and Ram Nivas have been nominated as named accused.
After completion of investigation, Investigating OfÏcer submitted police report under Section 173 (2) CrPC i.e. charge-sheet dated 02.10.2019, whereby and whereunder two of the named accused, namely, Anil (husband) and Smt. Angura @ Urmila (mother-in-law of the deceased) have been charge-sheeted, whereas other three named accused have been exculpated.
Learned counsel for the applicant contends that though applicant is the husband of the deceased and a named/charge-sheeted accused yet he is liable to be enlarged on bail. He submits that occurrence had taken place outside the house. The incident giving rise to the present criminal proceeding admittedly occurred on 30.08.2019, whereas the F.I.R was lodged on 07.09.2019 i.e. after nine days. As such, the F.I.R. is highly belated. However, there is no explanation in the F.I.R or in the statement of the first informant explaining the delay in lodging the F.I.R. Referring to the judgement of the Apex Court in P. Rajagopal Vs. The State of Tamil Nadu AIR 2019 SC 2866 (paragraph 8) , learned counsel for applicant contends that since the delay in lodging the FI.R. has not been explained, the prosecution of the applicant itself cannot be maintained. The police report under Section 173 (2) CrPC has already been submitted. As such the entire evidence sought to be relied upon by the prosecution against the applicant stands crystalized. However, upto this stage no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. Even otherwise, the applicant is a man of clean antecedents having no criminal history to his credit except the present one. The applicant is in custody since 07.09.2019. As such he has undergone more than four years of incarceration. On the above premise, it is thus urged by the learned counsel for applicant 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.
Per contra, the learned A.G.A. has vehemently opposed the prayer for bail. He submits that since the applicant is a named as well as charge-sheeted accused therefore, he does not deserve any indulgence by this Court. The applicant is
husband of the deceased. The deceased was a young girl aged about 23 years who has been put to death just after two years and two months of her marriage. The death of the deceased has occurred within seven years of her marriage and in her marital home. As such, the same is a dowry death. Since the applicant is the husband of the deceased and an inmate of the house, therefore by virtue of the provisions contained in Sections 103 and 106 of the Evidence Act, the burden is upon the applicant not only to explain the manner of occurrence but also his innocence. However, up to this stage, the applicant has miserably failed to discharge the said burden. It is thus contended that no sympathy be shown by this Court in favour of the applicant.
When confronted with above, the learned counsel for applicant could not overcome the same.
Having heard the leaned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, complicity of the accused, accusation made, nature and gravity of offence and coupled with the fact that the death of the deceased has occurred within seven years of marriage at her marital home therefore, prima facie the death of deceased is a dowry death, as per the opinion of the autopsy surgeon the cause of death of the deceased is asphyxia as a result of ante-mortem throttling, even though applicant is the husband of the deceased and an inmate of the house yet he has failed to explain the manner of occurrence, there is nothing on record to infer innocence of the applicant therefore irrespective of the submissions urged by the learned counsel for applicant in support of the present application for bail, this Court does not find any good ground to enlarge the applicant on bail.
As a result, the bail application thus fails and is liable to be rejected.
It is accordingly rejected .
Order Date :- 20.9.2023. Rks.
Digitally signed by :- RAJESH KUMAR SINGH High Court of Judicature at Allahabad
2 issues framed by the court
Whether the applicant is entitled to enlargement on bail given the unexplained delay in FIR and his role as husband of deceased.
Whether the Burden of Proof under Sections 103 and 106 of Evidence Act shifts to the applicant to explain the manner of occurrence and his innocence.
Colour shows how this judgement treated each authority
P. Rajagopal Vs. The State of Tamil NaduReferred¶15
P. Rajagopal Vs. The State of Tamil Nadu AIR 2019 SC 2866 (paragraph 8) · Who else cites this
3 provisions across 3 enactments
Anil
Rajeev Misra
Rajesh Kumar Singh
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
