Allowed

Ram Kishore v. State of U.P.

Allahabad HC3 Mar 2023BAIL/57402/2022

Case brief

AI extract

What is this about?

This is the third bail application by Ram Kishore in a case involving dowry death. The court allowed bail, relying on the precedent of a co-accused's release, noting the lack of distinguishing features and the delay in trial, while imposing strict conditions.

What did the court decide?

Maintenance custody as a prisoner to the applicant and two heavy sureties on the satisfaction of the court concerned.

Ram Kishore Vs State of U.P. — Cheque Dishonour | Allahabad HC (2023)

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Court No. - 66

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Case :- CRIMINAL MISC. BAIL APPLICATION No. - 57402 of 2022

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Applicant :- Ram Kishore Opposite Party :- State of U.P. Counsel for Applicant :- Zafar Abbas Counsel for Opposite Party :- G.A.

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Hon'ble Rajeev Misra,J.

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Heared Mr. Zafar Abbas, the learned counsel for applicant and the learned A.G.A. for State.

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This is third bail application filed by applicant- Ram Kishore seeking his enlargement on bail in Case Crime No. 0204 of 2018 (S.T. No. 873 of 2018) under sections 498A, 304B, 315, 328 IPC and Section 3/4 D.P. Act, Police Station- Kundarki, District Moradabad

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The first bail application of of applicant being Criminal Misc. Bail Application No. 46483 of 2018 (Ram Kishore Vs. State of U.P) was rejected by this Court vide order dated 18.12.2018. For ready reference same is reproduced herein under:

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

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This application for bail has been filed by the applicant-Ram Kishor seeking his enlargement on bail in Case Crime No. 204 of 2018, under Sections 498-A, 304-B, 315, 328 I.P.C. and Sections 3/4 D.P. Act, Police Station-Kundarki, District-Moradabad during the pendency of the trial.

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It transpires from the record that the marriage of the son of the applicant namely Rakesh was solemnized with Suman on 30.12.2017. Just after the expiry of a period of five months and 26 days from the date of marriage of the son of the applicant, an unfortunate incident occurred on 26.06.2018, in which the daughter-in-law of the applicant died in suspicious circumstances. The inquest of the deceased was conducted on the same date i.e. on 26.06.2018 not on the information given by the present applicant or any of his family members, but on the information given by the Police Control Room. In the opinion of the Panch witnesses, the death of the deceased was characterized as homicidal. The post-mortem of the body of the deceased was conducted thereafter. The Doctor, who conducted the autopsy on the body of the deceased, opined that no definite

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reason can be assigned for the cause of the death of the deceased. Accordingly, the viscera was preserved. The doctor, however, found 5 ante-mortem injuries on the body of the deceased, which are detailed herein below:-

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(1) Abraded contusion 2 x 1 cm on right side of face just below lower border of mandible.

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(2) Abraded contusion 1 cm x 0.2 cm which is 4 cm below from chin in midline.

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(3) Abraded contusion 2 x 1 cm, which is 5 cm below from chin and 1.5 cm left lateral to injury no. (2)

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(4) Abraded contusion 1 x 1 cm on front of right knee joint.

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(5) Abraded contusion 1.5 cm x 1 cm. Right lap to injury no. (4) approximately 1.5 cm

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The first information report in respect of the aforesaid incident was lodged on 26.6.2018 by Arvind the brother of the deceased, which was registered as Case Crime No. 204 of 2018, under Sections 498-A, 304-B, 315, 328 I.P.C. and Sections 3/4 D.P. Act, Police Station-Kundarki, District-Moradabad. In the aforesaid F.I.R., three persons, namely, Rakesh (the husband), Ram Kishor (the father-in-law) and Maya Devi (the mother-in-law) of deceased were nominated as named accused. The Police upon completion of the statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. has submitted the charge-sheet dated 06.09.2018 against all the three named accused. Upon the submission of the charge-sheet, cognizance was taken by the court concerned and thereafter, the case was committed to the Court of Sessions. Accordingly, Sessions Trial No. 873 of 2018 (State Vs. Rakesh and others) came to be registered which is now said to be pending in the Court of District and Sessions Judge, Moradabad.

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Learned counsel for the applicant submits that the applicant is the father-in-law of the deceased, but he is innocent. The applicant is an old man and is in Jail since 28.06.2018. The deceased was a short tempered lady and has taken the extreme step of committing suicide by consuming Aluminium Phosphide as is evident from the viscera report dated 08.06.2018 submitted by the Chemical Analyst. The deceased was residing separately from the family of the applicant. As such the applicant has no room to play in the family life of the deceased. General and omnibus allegations with regard to the non-fulfilment of dowry are not pointing at the applicant. The husband of the deceased is already languishing in jail. As such, the applicant is liable to be enlarged on bail.

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Per contra, the learned AGA has opposed the prayer for bail. He submits that the deceased was a young lady aged about 20 years.

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The deceased has died at her matrimonial home just after 5 months and 26 days from the date of her marriage occurrence. The death of the deceased is, therefore, highly unnatural. The presence of 5 external ante-mortem injuries on the body of the deceased has not been explained by the applicant. The plea of separate living raised by the learned counsel for the applicant is not substantiated by any public document. The certificate of Gram Pradhan dated 4.12.2018 does not prove that the applicant was residing separately from the family of the deceased. As such, the document cannot be relied upon. On the aforesaid factual premise, he thus submits that the bail application of the applicant is liable to be rejected.

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Having heard the learned counsel for the applicant, learned A.G.A. for the State and upon perusal of the material brought on record and the complicity of the applicant but without expressing any opinion on merits of the case, I do not find any good ground to allow the present application. Consequently, the bail application of the applicant is hereby rejected.

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However, at this stage, it is expected from the learned trial court to gear up the trial and make necessary endeavour to conclude the same within one year provided the applicant would render all necessary co-operation in early conclusion of the trial.

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Office is directed to communicate the copy of this order forthwith to concerned court for necessary compliance. "

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Subsequent to above, applicant filed second bail application which was rejected vide order dated 4.12.2019, passed in Criminal Misc. Bail Application No. 20853 of 2019 (Ram Kishore Vs. State of U.P). Same is extracted herein under:

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"Supplementary affidavit on behalf of applicant in Court today, is taken on record.

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Heard Mr. Narendra Kumar, learned counsel for applicant, learned A.G.A. for State and Mr. Manish Joshi, Advocate, holding brief of Mr. Mukesh Joshi, learned counsel for complainant.

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This second bail application has been filed by applicant Ram Kishore for seeking his enlargement on bail during pendency of S.T. No. 873 of 2018, (State Vs. Rakesh and others) under Sections 498A, 304 B, 315, 328 I.P.C. and 3/4 D.P. Act, P.S. Kundarki, District Moradabad, arising out of Case Crime No. 204 of 2018, under Sections 498A, 304 B, 315, 328 I.P.C. and 3/4 D.P. Act, P.S. Kundarki, District Moradabad and now pending in the Court of District and Sessions Judge/Fast Track Court No. 1, Moradabad.

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First bail application was rejected by this Court, vide order dated 18.12.2018 with a direction that Court below shall conclude the trial within a period of one year.

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Learned counsel for applicant has submitted that this Court expedited the trial, vide order dated 18.12.2018. In spite of expiry of a period of one year, the trial has not been concluded. He, therefore, submits that the applicant is liable to be enlarged on bail.

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Perusal of order sheet of above mentioned sessions trial shows that Court below cannot be attributed for the delay, which has taken place.

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In view of above, no case for bail is made out. Bail application is accordingly rejected. "

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Applicant has now approached this Court by means of third bail application, seeking his enlargement on bail.

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Learned counsel for applicant submits that during pendency of this application, co-accused Maya Devi, mother-in-law of deceased has already been enlarged on bail by this Court vide order dated 14.2.2023, passed in Criminal Misc. Bil Application No. 14042 of 2020 (Maya Devi Vs. State of U.P.). The same reads as under:-

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"1. List has been revised. This is the second bail application. First bail application was rejected by this Court 18.12.2018.

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2. Heard Sri Zafar Abbas, learned counsel for the applicant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the record. Learned counsel for the informant is not present.

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3. Applicant seeks bail in Case Crime No. 0204 of 2018, under Sections 498-A, 304-B, 315, 328 I.P.C. and Section 3/4 Dowry Prohibition Act, 1961, Police Station Kundarki, District Moradabad, during the pendency of trial.

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4. Learned counsel for the applicant has stated that the applicant is a lady and is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize her. The applicant is languishing in jail since 28.6.2018. Learned counsel has next stated that the trial is moving at a snail's pace and only two witnesses of fact and one formal witness has been examined. In all, only three witnesses have been examined to date. Learned counsel has next stated that there is no likelihood of the conclusion of trial in the near future. Her constitutional right provided under Article 21 of the Constitution of India stands jeopardized. Learned counsel has also submitted that the case of the applicant is on a different footing to the co-accused Rakesh (husband). In case, the applicant is released on bail, she will not misuse the liberty of bail.

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5. Per contra, learned A.G.A. has vehemently opposed the bail application but unable to dispute the submissions raised by the learned counsel for the applicant.

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6. Considering the facts and circumstances of the case, submissions made by learned counsel for the parties, the evidence on record, pending trial and taking into consideration the period of incarceration of the applicant and

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she being a lady, and the fact there is no likelihood of early disposal of trial, at this stage, without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.

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7. Let the applicant- Maya Devi involved in aforementioned case crime number be released on bail on furnishing a personal bond and two heavy sureties each in the like amount to the satisfaction of the court concerned subject to following conditions.

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i. The applicant will not tamper with the evidence during the trial.

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ii. The applicant will not pressurize/ intimidate the prosecution witness.

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iii. The applicant will appear before the trial court on the date fixed, unless personal presence is exempted.

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iv. The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.

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v. The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence.

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8. In case of breach of any of the above conditions, the prosecution shall be at liberty to move bail cancellation application before this Court.

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9. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted.

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10. It is made clear that observations made in granting bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion on the testimony of the witnesses. "

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On the aforesaid premise, the learned counsel for applicant submits that the case of present applicant is similar and identical to that of aforesaid co-accused. He, therefore, submits that for the facts and reasons mentioned in the bail order of aforementioned co-accused, applicant is also liable to be enlarged on bail. There is no such distinguishing feature on the basis of which case of present applicant can be distinguished from aforesaid co-accused so as to deny bail to applicant. As such, applicant is liable to be enlarged on bail on the ground of parity.

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It is then contended that up to this stage, three prosecution witnesses of fact has been examined. They have however, supported the prosecution story. It is further submitted by learned counsel for applicant that applicant is in custody since 28.6.2018. As such he has undergone more than four years and eight months of incarceration. In view of the period of incarceration undergone

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by applicant, coupled with the fact that inspite of the direction contained in the order dated 18.12.2018 for early conclusion of trial, the trial has not yet concluded. As such, applicant is liable to be enlarged on bail.

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Per contra, the learned A.G.A. has opposed the present application for bail. He submits that since applicant is a named as well as charge sheeted accused, therefore he does not deserve any sympathy of this Court. He contends that prosecution witnesses who have been examined up to this stage, has supported the F.I.R. On the aforesaid premise, learned A.G.A. submits that no new or good ground has emerged to enlarge the applicant on bail.

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Having heard the learned counsel for applicant the learned A.G.A. for State upon perusal of material brought on record as well as the complicity of applicant, accusation made coupled with the fact that co-accused Maya Devi has already been enlarged on bail by this Court vide order dated 14.2.2023, there is no distinguishing feature in the case of applicant with that of aforesaid co-accused so as to distinguish the case of present applicant from above mentioned coaccused but without making any comment on the merits of the case applicant has made out a case for bail.

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Accordingly, the bail application is allowed.

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Let the applicant Ram Kishore , be released on bail in the aforesaid case crime number on 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 SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE

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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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(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.

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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 :- 3.3.2023 Arshad

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Digitally signed by :- ARSHAD MAHMOOD High Court of Judicature at Allahabad

Ram Kishore v. State of U.P.

Case brief

What is this about?

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Ram Kishore v. State of U.P.

Case brief

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