Anu @ Ashoka vs State Of U.P. on 28 April, 2025

Allahabad High Court

Anu @ Ashoka vs State Of U.P. on 28 April, 2025

Author: Samit Gopal

Bench: Samit Gopal

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2025:AHC:64962
 
Court No. - 64
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 9176 of 2025
 

 
Applicant :- Anu @ Ashoka
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Pradeep Kumar,Rakesh Kumar Singh
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Samit Gopal,J.
 

1. List revised.

2. Heard Sri Pradeep Kumar, learned counsel for the applicant, Sri Ram Prakash Shukla, learned counsel for the State and perused the material on record.

3. This bail application under Section 483 BNSS has been filed by the applicant-Anu @ Ashoka, seeking enlargement on bail during trial in connection with S.T. No.2212 of 2024, Case Crime No.186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 D.P. Act, registered at P.S. Seohara, District Bijnor.

4. The FIR of the matter was lodged on 18.4.2022 by Mahendra Singh against the applicant, Kolindra, Birmo Devi, Ram Singh, Anju and Harendra alleging therein that his daughter Amisa was married around 6 years back to Kolindra. After marriage the accused persons used to torture & trouble her for dowry and there was demand of Rs.5 lakh from her. His son-in-law had left his daughter to her maternal house and had gone somewhere else. She has son aged about 5 years. On 3.4.2022 after panchayat, his daughter was again sent back to her matrimonial house. On 18.4.2022 through telephone, he received an information that his daughter has committed suicide by igniting herself. He reached there wherein she told him that the accused persons assaulted her and sprinkled kerosene oil on her and set her ablaze. Her treatment is going on. She has injuries on her hand which were inflicted by knife. A report be lodged and action be taken.

5. The FIR was lodged under Sections 498-A, 323, 307 IPC and Section 3/4 D.P. Act. During investigation the statement of the deceased was recorded under Section 161 Cr.P.C. and 164 Cr.P.C. Subsequently she died while being under treatment on 24.4.2022 at 3.15 a.m. at Safdarganj Hospital, Delhi where she was taken on 19.4.2022. The doctor opined the cause of death septic shock as a result of infected antemortem thermal flame burns involving about 90% of total body surface area. However viscera has been preserved to rule out any concommitant poisoning.

6. Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. It is argued that the applicant is the jethani of the deceased. It is argued that although in the statement of the deceased recorded under Section 164 Cr.P.C. she names the applicant and states of the applicant and her mother-in-law troubling her for dowry but there is no other overt-act assigned to her. It is further argued that in so far as the assault by a knife is concerned, the same has been assigned to co-accused who are father-in-law, mother-in-law, nandoi Harendra. It is further argued that the husband of the deceased namely Kolindar Singh @ Kolindra has been granted bail by coordinate Bench of this Court vide order dated 25.10.2024 passed in Criminal Misc. Bail Application No.36557 of 2024, copy of the same is annexed as Annexure No.6 to the affidavit filed in support of bail application. The said order reads as under:-

“Heard Mr. Amit Kumar, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anil Kumar Srivastava, the learned counsel for first informant/opposite party-2.

Perused the record.

This repeat application for bail has been filed by applicant- Kolindar Singh @ Kolindra seeking his enlargement on bail in Case Crime No. 186 of 2022, under Sections 498A, 304-B, 307, 323 IPC and Section 3/4 D.P. Act, Police Station- Seohara, District- Bijnor during pendency of trial i.e Sessions Trial No. 753 of 2022, under Sections 498A, 304-B, 307, 323 IPC and Section 3/4 D.P. Act, Police Station- Seohara, District- Bijnor, now pending in the Cour of ADJ/F.T.C-I, Bijnor.

First bail application of applicant was rejected by this Court vide order dated 1.12.2023, passed in Criminal Misc. Bail Application No. 42295 of 2023 (Kolindar Singh @ Kolindra Vs. State of U.P.) decided along with Criminal Misc. Bail Application No. 44916 of 2022 (Ram Singh Vs. State of U.P.). For ready reference, the order dated 4.12.2023, is reproduced herein under:

“Heard Mr. Braham Singh, the learned counsel for applicants, the learned A.G.A. for State and Mr. Ran Vijay Singh, Advocate holding brief of Mr. A. Kumar Srivastava, the learned counsel representing first informant.

These applications for bail have been filed by applicants Kolindar Singh @ Kolindra and Ram Singh seeking their enlargement on bail in Case Crime No.186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor, during the pendency of trial.

Perused the record.

Record shows that marriage of applicant Kolindar Singh was solemnized with Amisha (daughter of first informant) on 27.01.2016 in accordance with Hindu rites and custom. However, Just after expiry of a period of six years and three months from the date of marriage of the applicant, an unfortunate incident occurred on 18.04.2022 in which the wife of applicant sustained burn injuries.

It is the case of the applicants that the injured was taken to the hospital on the same day i.e. 18.04.2022. While the victim was undergoing treatment, her statement under Section 164 CrPC was recorded by the Naib Tehsildar on 18.04.2022. The same is on record as Annexure-‘4’ to the affidavit filed in support of bail application of Kolindar Singh. Ultimately, the victim succumbed to the burn injuries sustained by her on 24.04.2022.

Subsequent to above occurrence, first information report dated 18.04.2022 was lodged by Mahendra Singh (father of the victim) and was registered as Case Crime No.0186 of 2022, under Sections 498-A, 323, 307 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor. In the aforesaid FIR, six persons, namely; Kolindar (applicant herein), Birmo Devi; Ram Singh (applicant herein); Anju; Ashoka and Harendra have been nominated as named accused.

It is apposite to mention here that while the victim was undergoing treatment at Safdarjung Hospital, she ultimately succumbed to the burn injuries sustained by her on 24.04.2022. Accordingly, the post-mortem of body of the deceased was conducted at Safdarganj Hospital, New Delhi. In the opinion of autopsy surgeon who conducted autopsy of body of the deceased cause of death of deceased was Septic shock as a result of infected antemortem thermal flame burns involving about 90% of total body surface area. However viscera has been preserved to rule out any concomitant poisoning.

After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant and other witnesses under Section 161 CrPC. The witnesses so examined have substantially supported the FIR. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of four of the named accused, namely, Kolindar Singh (husband), Ram Singh (father-in-law) (applicants herein), Smt. Birmo (mother-in-law) and Harendra Singh (Nandoi) of the deceased is established in the crime in question. He, accordingly, submitted the charge-sheet dated 11.04.2023, whereby aforementioned four named accused have been charge-sheeted under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, whereas Anju (Nanad of the deceased) has been exculpated.

At the very outset, the learned A.G.A. submits that bail application of named/charge-sheeted co-accused Harendra Singh (Nandoi of the deceased) has already been rejected by this Court vide order dated 06.01.2023 passed in Criminal Misc. Bail Application No.44764 of 2022 (Harendra Singh Vs. State of U.P.). For ready reference, the same is reproduced herein-under :-

“1. Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri A Kumar Srivastava, learned counsel for the first informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the material placed on record.

2. Applicant seeks bail in Case Crime No. 186 of 2022, U/S 498-A, 304-B, 307, 323 IPC and 3/4 Dowry Prohibition Act, Police Station Sheohara, District Bijnor, during the pendency of trial.

3. As per prosecution story, the applicant and the co-accused persons namely, husband, father-in-law and mother-in-law are stated to have subjected the deceased person to cruelty for a demand of dowry and ensuing the said demand, the applicant, who happens to be brother-in-law of the husband of the deceased alongwith other co-accused persons, is stated to have assaulted her with knife and later on are stated to have sprinkled kerosene oil on her and set her ablaze leading to her death later on.

4. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel has stated that applicant is brother-in-law of the husband of the deceased and lives 65 kms away from the scene of occurrence. Learned counsel has claimed alibi of the applicant as he was busy in the Haldi ceremony of his niece. Learned counsel has next stated that the said fact stands substantiated by the fact that one co-accused person, who is the wife of the applicant, has been exonerated by the police during investigation. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and his name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased person, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit.

5. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 23.5.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

6. Per contra, learned A.G.A. and learned counsel for the first informant have vehemently opposed the bail application on the ground that the dying declaration categorically indicates that the applicant was present at the time of occurrence alongwith father-in-law and mother-in-law of the deceased person and the said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. Learned counsel has next stated that the statement before the investigating officer tantamounts to dying declaration. Had the dying declaration not been recorded under due provisions of law, then even the statement of the victim recorded before the investigating officer would have fallen within the category of dying declaration.

7. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, the presence of dying declaration including the statement before the investigating officer and the injury report, post-mortem report, pending trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

8. The bail application is, accordingly, rejected.

9. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

10. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.”

Similarly, bail application of another named/charge-sheeted co-accused Smt. Birmo (mother-in-law of the deceased) has also been rejected by this Court vide order dated 11.04.2023 passed in Criminal Misc. Bail Application No.44940 of 2022 (Smt.Birmo Vs. State of U.P.). For ready reference, the order reads as under :-

“Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the informant.

By means of this application under Section 439 of Cr.P.C., applicant-Smt. Birmo, who is involved in Case Crime No. 186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Sections 3/4 of Dowry Prohibition Act, Police Station Seohara, District Bijnor, seeks enlargement on bail during the pendency of trial.

As per prosecution case in brief, informant Mahendra Singh, father of the deceased lodged an F.I.R. on 18.04.2022 against Smt. Birmo (present applicant) and five others namely Kolinder, Ram Singh, Anju, Ashoka and Harendra alleging inter-alia that the marriage of his daughter was solemnized with Kolinder six years back. After the marriage, aforesaid accused persons started harassing and torturing his daughter and started making additional demand of Rs. 5,00,000/- and on non-fulfillment of their demand, all the accused persons assaulted her with knife and later on sprinkled kerosene oil on her and set her ablaze to death.

It is argued by learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case. It is next argued that applicant is mother-in-law of the deceased. During investigation, wife of co-accused Harendra Singh has been exonerated by the police. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and her name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit. Applicant has no criminal history to her credit and is languishing in jail since 09.05.2022.

Per contra, learned A.G.A. and learned counsel for the informant opposed the prayer for bail of the applicant by contending that the dying declaration categorically indicates that the applicant was present at the time of occurrence. The said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. It is further submitted that the bail application of co-accused Harendra Singh was rejected by the co-ordinate Bench of this Court vide order dated 06.01.2023 in Criminal Misc. Bail Application No. 44764 of 2022.

Having heard learned counsel for the parties and examined the matter in its entirety, I find that the deceased died her unnatural death in her matrimonial home. In the dying declaration, there is specific allegation against the applicant, which cannot be ignored and disbelieved at this stage. Bail application of co-accused Harendra Singh, under similar accusation, was rejected, as noted above. The offence is heinous in nature. Considering the manner in which the crime has been committed, as noted above, the bail application of the applicant is not liable to be allowed.

Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injury, presence of dying declaration and severity of punishment, I do not find any good ground to release the applicant on bail.

Accordingly, the bail application is rejected.

It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.”

On the above premise, the learned A.G.A. submits that since present applicants are husband and father-in-law of the deceased therefore, no indulgence be granted by this Court.

According to the learned A.G.A., the statement of the victim was recorded under Section 164 CrPC, which has now been treated as dying declaration, as the deceased died shortly after giving her aforesaid statement on 18.04.2022 to the Naib Tehsildar. Therefore, the same shall be treated as a dying declaration and is admissible in evidence under Section 34 of the Indian Evidence Act. The deceased in her aforesaid statement has clearly implicated the charge-sheeted accused for immolating her. However, in her aforesaid statement the deceased has alleged that additional demand of dowry was made by the father-in-law, mother-in-law and the husband to the tune of rupees five lacs on account of which she was residing at her parental home.

Learned counsel for applicants when confronted with above submits that irrespective of the facts pointed out by the learned A.G.A. in opposition to the present applications for bail yet the applicants though named and charge-sheeted accused are liable to be enlarged on bail. Referring to the statement of the victim (dying declaration), he submits that no role has been assigned to the husband of the deceased i.e. applicant Kolindar Singh i.e. either pouring kerosene on the body of the victim or immolating her. He, therefore, submits that as per the dying declaration of the deceased, it cannot be said that her husband i.e. applicant Kolindar Singh is involved in immolating the victim. It is then contended that the autopsy surgeon who conducted autopsy of body of the deceased did not find any smell of kerosene on the body of the deceased nor any such material was collected by the Investigating Officer from the place of occurrence to show that kerosene was kept near the place of occurrence. With reference to the material on record, the learned counsel for applicants contends that father-in-law of the deceased i.e. Ram Singh was living separately at a distant place and since the father-in-law of the deceased was not residing with the deceased therefore no question of demand of dowry or commission of cruelty upon the deceased by the applicant Ram Singh, father-in-law of the deceased, can be inferred. Even otherwise, the dying declaration is false, inasmuch as, there is nothing on record to show the presence of applicant Ram Singh near the place of occurrence or at the time and place of occurrence. On the above conspectus, he submits that applicants are liable to be enlarged on bail.

Having heard the learned counsel for applicants, the learned A.G.A. for State and the learned counsel representing first informant this Court finds that it is an undisputed fact that the deceased is the wife/daughter-in-law of the applicants. The issue as to whether the father-in-law was present at the time and place of occurrence or not is a disputed defense of applicant Ram Singh which can more appropriately be dealt with by the trial court. Prima facie, the presence of accused-applicant Ram Singh at the time and place of occurrence is established as per the dying declaration of the deceased herself. No such material has been placed by the learned counsel for applicants on the basis of which the very credibility of the dying declaration could be doubted. In view of above, there is nothing on record to prima facie indicate that applicant Ram Singh was not present at the time and place of occurrence. So far as applicant Kolindar Singh is concerned, it is evident that applicant Kolindar Singh is the husband of the deceased. Admittedly, the death of the deceased has occurred in the house of applicants and within seven years of her marriage therefore beyond shadow of doubt it can be said that the death of the deceased is a dowry death. Since the applicant Kolindar Singh is the husband of the deceased and also an inmate of the house when the occurrence occurred therefore, the burden is upon the applicant Ram Singh to not only explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act. However, prima facie, upto this stage, applicant (Kolindar Singh) has miserably failed to discharge the said burden. Admittedly, in the dying declaration the deceased has clearly implicated applicant Kolindar Singh i.e. her husband for making demand of additional dowry to the tune of rupees five lacs from his parents. Apart from above, the Court further finds that bail applications of other two charge-sheeted co-accused have already been rejected by this Court after taking into consideration the facts and circumstances of the case. Up to this stage, no such evidence could be pointed out by the learned counsel for applicants on the basis of which it can be said that the case of present applicants is distinguishable from other two named/charge-sheeted co-accused whose bail applications have already been rejected by this Court.

Furthermore, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, upon perusal of record this Court finds that applicants are named and charge-sheeted accused, applicant Kolindar Singh is the husband of the deceased, whereas applicant Ram Singh is the father-in-law of the deceased, in the dying declaration of the deceased the role of pouring kerosene and thereafter immolating the deceased has been assigned to other three charge-sheeted accused including father-in-law of the deceased, namely, Ram Singh, the bail applications of similarly situate and circumstanced co-accused have already been rejected by this Court, the Court does not find any distinguishable feature in the case of present applicant Ram Singh to distinguish his case from other two named and charge-sheeted co-accused and grant him bail, the issue as to whether the father-in-law along with others was residing at separate/distant place and therefore his presence at the time and place of occurrence is impossible is the disputed defense of applicant Ram Singh which can more appropriately be dealt with during the course of trial, but no inference qua the innocence of applicant Ram Singh can be inferred on the basis of same, applicant Kolindar Singh is the husband of the deceased and specific allegations regarding demand of dowry have been made by the deceased in her dying declaration against her husband i.e. applicant Kolindar Singh, her father-in-law as well as her mother-in-law regarding demand of additional dowry to the tune of rupees five lacs and commission of cruelty, the death of the deceased has taken place at her marital home and that too within seven years of her marriage therefore, the same is a dowry death, consequently by reason of above and also the fact that applicant Kolindar Singh is the husband of the deceased and an inmate of the house therefore the burden is upon the applicant Kolindar Singh not only to explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act, however, upto this stage, the applicant Kolindar Singh has miserably failed to discharge the said burden therefore, irrespective of the fact that the applicants are men of clean antecedents having no criminal history to their credit, the period of incarceration undergone, the police report under Section 173 (2) CrPC has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against the applicants stands crystalized therefore the varied submissions urged by the learned counsel for applicants, this Court does not find any new good or sufficient ground to enlarge the applicants on bail.

Accordingly, the applications for bail thus fail and are liable to be rejected.

They are accordingly rejected. ”

Learned counsel for applicant contends that though the applicant is husband of deceased, a named and charge sheeted accused, yet he is liable to be enlarged on bail. The charge sheet/police report in terms of Section 173(2) Cr.P.C. was submitted by Investigating Officer against applicant on 5.8.2022. Upon submission of aforesaid charge sheet, cognizance was taken upon same and the charge sheeted accused were summoned. Since offence complained of is triable exclusively by the Court of sessions, therefore, jurisdictional Magistrate in line with the section 209 Cr.P.C., committed the case to the Court of sessions. Resultantly, aforesaid seasons trial came to be registered. Thereafter concerned Judge proceeded with the trial. He framed charges against charge sheeted accused which was denied and they demanded trial. As a result, trial procedure commenced. On the above premise, learned counsel for applicant contends that inspite of the fact that a period of almost one year and six months has rolled by from the date of trial, not a single prosecution witness has yet appeared before Court below. Therefore liberty of applicant cannot be curtailed on account of lackadaisical approach of the prosecution in pursuing the trial. 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 basis of above, it is thus contended that It is lastly contended that right to speedy trial is now recognized as the fundamental right of an accused. The aforesaid right of applicant stands infringed on account of non-cooperative conduct of the prosecution in pursuing the trial On the above conspectus, he therefore contends 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. Applicant is in jail since 22.6.2022. As such, he has undergone more than one year and two years and three months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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. and the learned counsel for first informant have opposed the present application. Much emphasis was laid to the observations made by this Court in the earlier order passed by this Court. On the above premise, they submit that since applicant is husband of the deceased, a named and charge sheeted accused, therefore no indulgence be granted by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this repeat application for bail, with reference to record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant is husband of the deceased, a named and charge sheeted accused, charge-sheet/police report was submitted against applicant by Investigating Officer in terms of Section 172 (3) Cr.P.C. on 5.8.2022, thereafter the jurisdictional Magistrate committed the case to the Court of Sessions, on account of above, sessions trial came to be registered against applicant and other charge sheeted accused, concerned sessions judge framed charges on 26.4.2023, inspite of the fact that a period of one year and six month has rolled by from the date of framing of charge order, not a single prosecution witness has yet deposed before Court below, the right to speedy trial is now recognized as a fundamental right of an accused vide judgement of Supreme Court in A. R. Antulay (Supra), on account of lackadaisical approach of the prosecution in pursuing the trial, the aforesaid right of accused applicant stands infringed, the clean antecedents of applicant, the period of incarceration undergone, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet inspite of above, the learned A.G.A. nor the learned counsel for first informant could point out any such circumstance from the record necessitating custodial arrest of applicants during the pendency of trial, the judgement of Supreme court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373, therefore, irrespective of the objections raised by the learned A.G.A. and the leanred counsel for first informant, in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Kolindar Singh @ Kolindra, 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:-

(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.

(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.

(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 DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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.

(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/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”

7. It is further submitted that Ram Singh, the father-in-law of the deceased has also been granted bail by coordinate Bench of this Court vide order dated 12.12.2024 passed in Criminal Misc. Bail Application No.45591 of 2024, copy of the same is annexed as Annexure No.6 to the affidavit filed in support of bail application. The said order reads as under:-

“1. Heard Mr. Amit Kumar, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1 and Mr. Anil Kumar Srivastava, Advocate, who has put in appearance on behalf of first informant by filing his Vakalatnama in Court today, which is taken on record.

2. Perused the record.

3. This repeat application for bail has been filed by applicant-Ram Singh, seeking his enlargement on bail in Case Crime No. 186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Sections Dowry Prohibition Act, Police Station-Seohara, District-Bijnor during the pendency of trial i.e. Sessions Trial No. 753 of 2022 (State Vs. Harendra and Others), under Sections 498-A, 304-B, 307, 323 IPC and Sections Dowry Prohibition Act, Police Station-Seohara, District-Bijnor now pending in the Court to A.D.J./F.T.C.-I, Bijnor.

4. The first bail application of applicant-Ram Singh was rejected by this Court by a detailed order dated 04.12.2023 passed in Criminal Misc. Bail Application No. 42295 of 2023 (Kolindar Singh @ Kolindra Vs. State of U.P.) decided along with Criminal Misc. Bail Application No. 44916 of 2022 (Ram Singh Vs. State of U.P.). For ready reference, the order dated 04.12.2023 is reproduced herein under:-

“Heard Mr. Braham Singh, the learned counsel for applicants, the learned A.G.A. for State and Mr. Ran Vijay Singh, Advocate holding brief of Mr. A. Kumar Srivastava, the learned counsel representing first informant.

These applications for bail have been filed by applicants Kolindar Singh @ Kolindra and Ram Singh seeking their enlargement on bail in Case Crime No.186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor, during the pendency of trial.

Perused the record.

Record shows that marriage of applicant Kolindar Singh was solemnized with Amisha (daughter of first informant) on 27.01.2016 in accordance with Hindu rites and custom. However, Just after expiry of a period of six years and three months from the date of marriage of the applicant, an unfortunate incident occurred on 18.04.2022 in which the wife of applicant sustained burn injuries.

It is the case of the applicants that the injured was taken to the hospital on the same day i.e. 18.04.2022. While the victim was undergoing treatment, her statement under Section 164 CrPC was recorded by the Naib Tehsildar on 18.04.2022. The same is on record as Annexure-‘4’ to the affidavit filed in support of bail application of Kolindar Singh. Ultimately, the victim succumbed to the burn injuries sustained by her on 24.04.2022.

Subsequent to above occurrence, first information report dated 18.04.2022 was lodged by Mahendra Singh (father of the victim) and was registered as Case Crime No.0186 of 2022, under Sections 498-A, 323, 307 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor. In the aforesaid FIR, six persons, namely; Kolindar (applicant herein), Birmo Devi; Ram Singh (applicant herein); Anju; Ashoka and Harendra have been nominated as named accused.

It is apposite to mention here that while the victim was undergoing treatment at Safdarjung Hospital, she ultimately succumbed to the burn injuries sustained by her on 24.04.2022. Accordingly, the post-mortem of body of the deceased was conducted at Safdarganj Hospital, New Delhi. In the opinion of autopsy surgeon who conducted autopsy of body of the deceased cause of death of deceased was Septic shock as a result of infected antemortem thermal flame burns involving about 90% of total body surface area. However viscera has been preserved to rule out any concomitant poisoning.

After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant and other witnesses under Section 161 CrPC. The witnesses so examined have substantially supported the FIR. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of four of the named accused, namely, Kolindar Singh (husband), Ram Singh (father-in-law) (applicants herein), Smt. Birmo (mother-in-law) and Harendra Singh (Nandoi) of the deceased is established in the crime in question. He, accordingly, submitted the charge-sheet dated 11.04.2023, whereby aforementioned four named accused have been charge-sheeted under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, whereas Anju (Nanad of the deceased) has been exculpated.

At the very outset, the learned A.G.A. submits that bail application of named/charge-sheeted co-accused Harendra Singh (Nandoi of the deceased) has already been rejected by this Court vide order dated 06.01.2023 passed in Criminal Misc. Bail Application No.44764 of 2022 (Harendra Singh Vs. State of U.P.). For ready reference, the same is reproduced herein-under :-

“1. Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri A Kumar Srivastava, learned counsel for the first informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the material placed on record.

2. Applicant seeks bail in Case Crime No. 186 of 2022, U/S 498-A, 304-B, 307, 323 IPC and 3/4 Dowry Prohibition Act, Police Station Sheohara, District Bijnor, during the pendency of trial.

3. As per prosecution story, the applicant and the co-accused persons namely, husband, father-in-law and mother-in-law are stated to have subjected the deceased person to cruelty for a demand of dowry and ensuing the said demand, the applicant, who happens to be brother-in-law of the husband of the deceased alongwith other co-accused persons, is stated to have assaulted her with knife and later on are stated to have sprinkled kerosene oil on her and set her ablaze leading to her death later on.

4. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel has stated that applicant is brother-in-law of the husband of the deceased and lives 65 kms away from the scene of occurrence. Learned counsel has claimed alibi of the applicant as he was busy in the Haldi ceremony of his niece. Learned counsel has next stated that the said fact stands substantiated by the fact that one co-accused person, who is the wife of the applicant, has been exonerated by the police during investigation. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and his name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased person, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit.

5. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 23.5.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

6. Per contra, learned A.G.A. and learned counsel for the first informant have vehemently opposed the bail application on the ground that the dying declaration categorically indicates that the applicant was present at the time of occurrence alongwith father-in-law and mother-in-law of the deceased person and the said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. Learned counsel has next stated that the statement before the investigating officer tantamounts to dying declaration. Had the dying declaration not been recorded under due provisions of law, then even the statement of the victim recorded before the investigating officer would have fallen within the category of dying declaration.

7. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, the presence of dying declaration including the statement before the investigating officer and the injury report, post-mortem report, pending trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

8. The bail application is, accordingly, rejected.

9. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

10. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.”

Similarly, bail application of another named/charge-sheeted co-accused Smt. Birmo (mother-in-law of the deceased) has also been rejected by this Court vide order dated 11.04.2023 passed in Criminal Misc. Bail Application No.44940 of 2022 (Smt.Birmo Vs. State of U.P.). For ready reference, the order reads as under :-

“Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the informant.

By means of this application under Section 439 of Cr.P.C., applicant-Smt. Birmo, who is involved in Case Crime No. 186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Sections 3/4 of Dowry Prohibition Act, Police Station Seohara, District Bijnor, seeks enlargement on bail during the pendency of trial.

As per prosecution case in brief, informant Mahendra Singh, father of the deceased lodged an F.I.R. on 18.04.2022 against Smt. Birmo (present applicant) and five others namely Kolinder, Ram Singh, Anju, Ashoka and Harendra alleging inter-alia that the marriage of his daughter was solemnized with Kolinder six years back. After the marriage, aforesaid accused persons started harassing and torturing his daughter and started making additional demand of Rs. 5,00,000/- and on non-fulfillment of their demand, all the accused persons assaulted her with knife and later on sprinkled kerosene oil on her and set her ablaze to death.

It is argued by learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case. It is next argued that applicant is mother-in-law of the deceased. During investigation, wife of co-accused Harendra Singh has been exonerated by the police. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and her name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit. Applicant has no criminal history to her credit and is languishing in jail since 09.05.2022.

Per contra, learned A.G.A. and learned counsel for the informant opposed the prayer for bail of the applicant by contending that the dying declaration categorically indicates that the applicant was present at the time of occurrence. The said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. It is further submitted that the bail application of co-accused Harendra Singh was rejected by the co-ordinate Bench of this Court vide order dated 06.01.2023 in Criminal Misc. Bail Application No. 44764 of 2022.

Having heard learned counsel for the parties and examined the matter in its entirety, I find that the deceased died her unnatural death in her matrimonial home. In the dying declaration, there is specific allegation against the applicant, which cannot be ignored and disbelieved at this stage. Bail application of co-accused Harendra Singh, under similar accusation, was rejected, as noted above. The offence is heinous in nature. Considering the manner in which the crime has been committed, as noted above, the bail application of the applicant is not liable to be allowed.

Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injury, presence of dying declaration and severity of punishment, I do not find any good ground to release the applicant on bail.

Accordingly, the bail application is rejected.

It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.”

On the above premise, the learned A.G.A. submits that since present applicants are husband and father-in-law of the deceased therefore, no indulgence be granted by this Court.

According to the learned A.G.A., the statement of the victim was recorded under Section 164 CrPC, which has now been treated as dying declaration, as the deceased died shortly after giving her aforesaid statement on 18.04.2022 to the Naib Tehsildar. Therefore, the same shall be treated as a dying declaration and is admissible in evidence under Section 34 of the Indian Evidence Act. The deceased in her aforesaid statement has clearly implicated the charge-sheeted accused for immolating her. However, in her aforesaid statement the deceased has alleged that additional demand of dowry was made by the father-in-law, mother-in-law and the husband to the tune of rupees five lacs on account of which she was residing at her parental home.

Learned counsel for applicants when confronted with above submits that irrespective of the facts pointed out by the learned A.G.A. in opposition to the present applications for bail yet the applicants though named and charge-sheeted accused are liable to be enlarged on bail. Referring to the statement of the victim (dying declaration), he submits that no role has been assigned to the husband of the deceased i.e. applicant Kolindar Singh i.e. either pouring kerosene on the body of the victim or immolating her. He, therefore, submits that as per the dying declaration of the deceased, it cannot be said that her husband i.e. applicant Kolindar Singh is involved in immolating the victim. It is then contended that the autopsy surgeon who conducted autopsy of body of the deceased did not find any smell of kerosene on the body of the deceased nor any such material was collected by the Investigating Officer from the place of occurrence to show that kerosene was kept near the place of occurrence. With reference to the material on record, the learned counsel for applicants contends that father-in-law of the deceased i.e. Ram Singh was living separately at a distant place and since the father-in-law of the deceased was not residing with the deceased therefore no question of demand of dowry or commission of cruelty upon the deceased by the applicant Ram Singh, father-in-law of the deceased, can be inferred. Even otherwise, the dying declaration is false, inasmuch as, there is nothing on record to show the presence of applicant Ram Singh near the place of occurrence or at the time and place of occurrence. On the above conspectus, he submits that applicants are liable to be enlarged on bail.

Having heard the learned counsel for applicants, the learned A.G.A. for State and the learned counsel representing first informant this Court finds that it is an undisputed fact that the deceased is the wife/daughter-in-law of the applicants. The issue as to whether the father-in-law was present at the time and place of occurrence or not is a disputed defense of applicant Ram Singh which can more appropriately be dealt with by the trial court. Prima facie, the presence of accused-applicant Ram Singh at the time and place of occurrence is established as per the dying declaration of the deceased herself. No such material has been placed by the learned counsel for applicants on the basis of which the very credibility of the dying declaration could be doubted. In view of above, there is nothing on record to prima facie indicate that applicant Ram Singh was not present at the time and place of occurrence. So far as applicant Kolindar Singh is concerned, it is evident that applicant Kolindar Singh is the husband of the deceased. Admittedly, the death of the deceased has occurred in the house of applicants and within seven years of her marriage therefore beyond shadow of doubt it can be said that the death of the deceased is a dowry death. Since the applicant Kolindar Singh is the husband of the deceased and also an inmate of the house when the occurrence occurred therefore, the burden is upon the applicant Ram Singh to not only explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act. However, prima facie, upto this stage, applicant (Kolindar Singh) has miserably failed to discharge the said burden. Admittedly, in the dying declaration the deceased has clearly implicated applicant Kolindar Singh i.e. her husband for making demand of additional dowry to the tune of rupees five lacs from his parents. Apart from above, the Court further finds that bail applications of other two charge-sheeted co-accused have already been rejected by this Court after taking into consideration the facts and circumstances of the case. Up to this stage, no such evidence could be pointed out by the learned counsel for applicants on the basis of which it can be said that the case of present applicants is distinguishable from other two named/charge-sheeted co-accused whose bail applications have already been rejected by this Court.

Furthermore, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, upon perusal of record this Court finds that applicants are named and charge-sheeted accused, applicant Kolindar Singh is the husband of the deceased, whereas applicant Ram Singh is the father-in-law of the deceased, in the dying declaration of the deceased the role of pouring kerosene and thereafter immolating the deceased has been assigned to other three charge-sheeted accused including father-in-law of the deceased, namely, Ram Singh, the bail applications of similarly situate and circumstanced co-accused have already been rejected by this Court, the Court does not find any distinguishable feature in the case of present applicant Ram Singh to distinguish his case from other two named and charge-sheeted co-accused and grant him bail, the issue as to whether the father-in-law along with others was residing at separate/distant place and therefore his presence at the time and place of occurrence is impossible is the disputed defense of applicant Ram Singh which can more appropriately be dealt with during the course of trial, but no inference qua the innocence of applicant Ram Singh can be inferred on the basis of same, applicant Kolindar Singh is the husband of the deceased and specific allegations regarding demand of dowry have been made by the deceased in her dying declaration against her husband i.e. applicant Kolindar Singh, her father-in-law as well as her mother-in-law regarding demand of additional dowry to the tune of rupees five lacs and commission of cruelty, the death of the deceased has taken place at her marital home and that too within seven years of her marriage therefore, the same is a dowry death, consequently by reason of above and also the fact that applicant Kolindar Singh is the husband of the deceased and an inmate of the house therefore the burden is upon the applicant Kolindar Singh not only to explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act, however, upto this stage, the applicant Kolindar Singh has miserably failed to discharge the said burden therefore, irrespective of the fact that the applicants are men of clean antecedents having no criminal history to their credit, the period of incarceration undergone, the police report under Section 173 (2) CrPC has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against the applicants stands crystalized therefore the varied submissions urged by the learned counsel for applicants, this Court does not find any new good or sufficient ground to enlarge the applicants on bail.

Accordingly, the applications for bail thus fail and are liable to be rejected.

They are accordingly rejected.”

5. Learned counsel for applicant submits that subsequent to above order dated 04.12.2023, co-accused Kolindar Singh @ Kolindra has been enlarged on bail by this Court, vide order dated 25.10.2024 passed in Criminal Misc. Bail Application No. 36557 of 2024 (Kolindar Singh @ Kolindra Vs. State of U.P.). For ready reference, the order dated 25.10.2024 is extracted herein under:-

“Heard Mr. Amit Kumar, the learned counsel for applicant, the learned A.G.A. for State and Mr. Anil Kumar Srivastava, the learned counsel for first informant/opposite party-2.

Perused the record.

This repeat application for bail has been filed by applicant- Kolindar Singh @ Kolindra seeking his enlargement on bail in Case Crime No. 186 of 2022, under Sections 498A, 304-B, 307, 323 IPC and Section 3/4 D.P. Act, Police Station- Seohara, District- Bijnor during pendency of trial i.e Sessions Trial No. 753 of 2022, under Sections 498A, 304-B, 307, 323 IPC and Section 3/4 D.P. Act, Police Station- Seohara, District- Bijnor, now pending in the Cour of ADJ/F.T.C-I, Bijnor.

First bail application of applicant was rejected by this Court vide order dated 1.12.2023, passed in Criminal Misc. Bail Application No. 42295 of 2023 (Kolindar Singh @ Kolindra Vs. State of U.P.) decided along with Criminal Misc. Bail Application No. 44916 of 2022 (Ram Singh Vs. State of U.P.). For ready reference, the order dated 4.12.2023, is reproduced herein under:

“Heard Mr. Braham Singh, the learned counsel for applicants, the learned A.G.A. for State and Mr. Ran Vijay Singh, Advocate holding brief of Mr. A. Kumar Srivastava, the learned counsel representing first informant.

These applications for bail have been filed by applicants Kolindar Singh @ Kolindra and Ram Singh seeking their enlargement on bail in Case Crime No.186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor, during the pendency of trial.

Perused the record.

Record shows that marriage of applicant Kolindar Singh was solemnized with Amisha (daughter of first informant) on 27.01.2016 in accordance with Hindu rites and custom. However, Just after expiry of a period of six years and three months from the date of marriage of the applicant, an unfortunate incident occurred on 18.04.2022 in which the wife of applicant sustained burn injuries.

It is the case of the applicants that the injured was taken to the hospital on the same day i.e. 18.04.2022. While the victim was undergoing treatment, her statement under Section 164 CrPC was recorded by the Naib Tehsildar on 18.04.2022. The same is on record as Annexure-‘4’ to the affidavit filed in support of bail application of Kolindar Singh. Ultimately, the victim succumbed to the burn injuries sustained by her on 24.04.2022.

Subsequent to above occurrence, first information report dated 18.04.2022 was lodged by Mahendra Singh (father of the victim) and was registered as Case Crime No.0186 of 2022, under Sections 498-A, 323, 307 IPC and Section 3/4 Dowry Prohibition Act, police station Seohara, district Bijnor. In the aforesaid FIR, six persons, namely; Kolindar (applicant herein), Birmo Devi; Ram Singh (applicant herein); Anju; Ashoka and Harendra have been nominated as named accused.

It is apposite to mention here that while the victim was undergoing treatment at Safdarjung Hospital, she ultimately succumbed to the burn injuries sustained by her on 24.04.2022. Accordingly, the post-mortem of body of the deceased was conducted at Safdarganj Hospital, New Delhi. In the opinion of autopsy surgeon who conducted autopsy of body of the deceased cause of death of deceased was Septic shock as a result of infected antemortem thermal flame burns involving about 90% of total body surface area. However viscera has been preserved to rule out any concomitant poisoning.

After aforementioned F.I.R. was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter XII CrPC. He examined the first informant and other witnesses under Section 161 CrPC. The witnesses so examined have substantially supported the FIR. On the basis of above and other material collected by the Investigating Officer during the course of investigation, he came to the conclusion that complicity of four of the named accused, namely, Kolindar Singh (husband), Ram Singh (father-in-law) (applicants herein), Smt. Birmo (mother-in-law) and Harendra Singh (Nandoi) of the deceased is established in the crime in question. He, accordingly, submitted the charge-sheet dated 11.04.2023, whereby aforementioned four named accused have been charge-sheeted under Sections 498-A, 304-B, 307, 323 IPC and Section 3/4 Dowry Prohibition Act, whereas Anju (Nanad of the deceased) has been exculpated.

At the very outset, the learned A.G.A. submits that bail application of named/charge-sheeted co-accused Harendra Singh (Nandoi of the deceased) has already been rejected by this Court vide order dated 06.01.2023 passed in Criminal Misc. Bail Application No.44764 of 2022 (Harendra Singh Vs. State of U.P.). For ready reference, the same is reproduced herein-under :-

“1. Heard Sri Gaurav Kakkar, learned counsel for the applicant, Sri A Kumar Srivastava, learned counsel for the first informant as well as Sri Vibhav Anand Singh, learned A.G.A. for the State and perused the material placed on record.

2. Applicant seeks bail in Case Crime No. 186 of 2022, U/S 498-A, 304-B, 307, 323 IPC and 3/4 Dowry Prohibition Act, Police Station Sheohara, District Bijnor, during the pendency of trial.

3. As per prosecution story, the applicant and the co-accused persons namely, husband, father-in-law and mother-in-law are stated to have subjected the deceased person to cruelty for a demand of dowry and ensuing the said demand, the applicant, who happens to be brother-in-law of the husband of the deceased alongwith other co-accused persons, is stated to have assaulted her with knife and later on are stated to have sprinkled kerosene oil on her and set her ablaze leading to her death later on.

4. Learned counsel for the applicant has argued that the applicant is absolutely innocent and has been falsely implicated in the present case with a view to cause unnecessary harassment and to victimize him. Learned counsel has stated that applicant is brother-in-law of the husband of the deceased and lives 65 kms away from the scene of occurrence. Learned counsel has claimed alibi of the applicant as he was busy in the Haldi ceremony of his niece. Learned counsel has next stated that the said fact stands substantiated by the fact that one co-accused person, who is the wife of the applicant, has been exonerated by the police during investigation. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and his name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased person, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit.

5. Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is further stated that there is no criminal history of the applicant. The applicant is languishing in jail since 23.5.2022. In case, the applicant is released on bail, he will not misuse the liberty of bail.

6. Per contra, learned A.G.A. and learned counsel for the first informant have vehemently opposed the bail application on the ground that the dying declaration categorically indicates that the applicant was present at the time of occurrence alongwith father-in-law and mother-in-law of the deceased person and the said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. Learned counsel has next stated that the statement before the investigating officer tantamounts to dying declaration. Had the dying declaration not been recorded under due provisions of law, then even the statement of the victim recorded before the investigating officer would have fallen within the category of dying declaration.

7. Considering the facts and circumstances of the case, submissions advanced by learned counsel for the parties, nature of offence, evidence on record, the presence of dying declaration including the statement before the investigating officer and the injury report, post-mortem report, pending trial and considering the complicity of accused, severity of punishment, at this stage, without expressing any opinion on the merits of the case, this Court is not inclined to release the applicant on bail.

8. The bail application is, accordingly, rejected.

9. However, it is directed that the court below may proceed with the trial and reach at the logical conclusion expeditiously, if there is no legal impediment, within a period of one year from the date of production of a certified copy of this order.

10. It is clarified that the observations made herein are limited to the facts brought in by the parties pertaining to the disposal of bail application and the said observations shall have no bearing on the merits of the case during trial.”

Similarly, bail application of another named/charge-sheeted co-accused Smt. Birmo (mother-in-law of the deceased) has also been rejected by this Court vide order dated 11.04.2023 passed in Criminal Misc. Bail Application No.44940 of 2022 (Smt.Birmo Vs. State of U.P.). For ready reference, the order reads as under :-

“Heard learned counsel for the applicant, learned Additional Government Advocate representing the State and learned counsel appearing on behalf of the informant.

By means of this application under Section 439 of Cr.P.C., applicant-Smt. Birmo, who is involved in Case Crime No. 186 of 2022, under Sections 498-A, 304-B, 307, 323 IPC and Sections 3/4 of Dowry Prohibition Act, Police Station Seohara, District Bijnor, seeks enlargement on bail during the pendency of trial.

As per prosecution case in brief, informant Mahendra Singh, father of the deceased lodged an F.I.R. on 18.04.2022 against Smt. Birmo (present applicant) and five others namely Kolinder, Ram Singh, Anju, Ashoka and Harendra alleging inter-alia that the marriage of his daughter was solemnized with Kolinder six years back. After the marriage, aforesaid accused persons started harassing and torturing his daughter and started making additional demand of Rs. 5,00,000/- and on non-fulfillment of their demand, all the accused persons assaulted her with knife and later on sprinkled kerosene oil on her and set her ablaze to death.

It is argued by learned counsel for the applicant that the applicant is absolutely innocent and has been falsely implicated in the present case. It is next argued that applicant is mother-in-law of the deceased. During investigation, wife of co-accused Harendra Singh has been exonerated by the police. Learned counsel has next stated that the victim herself out of rage, had tried to set herself ablaze and accidentally, she caught fire and thereby got burnt and succumbed to the burn injuries sustained. Learned counsel has next submitted that the dying declaration is tutored one and her name has been introduced later on. Learned counsel has also submitted that there are no allegations, whatsoever in the FIR or in the statement recorded under Section 161 Cr.P.C. or in the dying declaration that the applicant had demanded any dowry from the deceased. It is further stated that it is alleged in the FIR that there are injuries inflicted by knife to the deceased, which do not find substantiated by the post-mortem report or the injury report, which have been filed alongwith the affidavit. Applicant has no criminal history to her credit and is languishing in jail since 09.05.2022.

Per contra, learned A.G.A. and learned counsel for the informant opposed the prayer for bail of the applicant by contending that the dying declaration categorically indicates that the applicant was present at the time of occurrence. The said dying declaration has been duly recorded in the form of questions and answers. Learned A.G.A. has also stated that the statement of the victim was recorded by the investigating officer, which also corroborates the allegations levelled in the FIR which tantamounts to dying declaration. It is further submitted that the bail application of co-accused Harendra Singh was rejected by the co-ordinate Bench of this Court vide order dated 06.01.2023 in Criminal Misc. Bail Application No. 44764 of 2022.

Having heard learned counsel for the parties and examined the matter in its entirety, I find that the deceased died her unnatural death in her matrimonial home. In the dying declaration, there is specific allegation against the applicant, which cannot be ignored and disbelieved at this stage. Bail application of co-accused Harendra Singh, under similar accusation, was rejected, as noted above. The offence is heinous in nature. Considering the manner in which the crime has been committed, as noted above, the bail application of the applicant is not liable to be allowed.

Considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injury, presence of dying declaration and severity of punishment, I do not find any good ground to release the applicant on bail.

Accordingly, the bail application is rejected.

It is made clear that the observation contained in the instant order is confined to the issue of bail and shall not affect the merit of the trial.”

On the above premise, the learned A.G.A. submits that since present applicants are husband and father-in-law of the deceased therefore, no indulgence be granted by this Court.

According to the learned A.G.A., the statement of the victim was recorded under Section 164 CrPC, which has now been treated as dying declaration, as the deceased died shortly after giving her aforesaid statement on 18.04.2022 to the Naib Tehsildar. Therefore, the same shall be treated as a dying declaration and is admissible in evidence under Section 34 of the Indian Evidence Act. The deceased in her aforesaid statement has clearly implicated the charge-sheeted accused for immolating her. However, in her aforesaid statement the deceased has alleged that additional demand of dowry was made by the father-in-law, mother-in-law and the husband to the tune of rupees five lacs on account of which she was residing at her parental home.

Learned counsel for applicants when confronted with above submits that irrespective of the facts pointed out by the learned A.G.A. in opposition to the present applications for bail yet the applicants though named and charge-sheeted accused are liable to be enlarged on bail. Referring to the statement of the victim (dying declaration), he submits that no role has been assigned to the husband of the deceased i.e. applicant Kolindar Singh i.e. either pouring kerosene on the body of the victim or immolating her. He, therefore, submits that as per the dying declaration of the deceased, it cannot be said that her husband i.e. applicant Kolindar Singh is involved in immolating the victim. It is then contended that the autopsy surgeon who conducted autopsy of body of the deceased did not find any smell of kerosene on the body of the deceased nor any such material was collected by the Investigating Officer from the place of occurrence to show that kerosene was kept near the place of occurrence. With reference to the material on record, the learned counsel for applicants contends that father-in-law of the deceased i.e. Ram Singh was living separately at a distant place and since the father-in-law of the deceased was not residing with the deceased therefore no question of demand of dowry or commission of cruelty upon the deceased by the applicant Ram Singh, father-in-law of the deceased, can be inferred. Even otherwise, the dying declaration is false, inasmuch as, there is nothing on record to show the presence of applicant Ram Singh near the place of occurrence or at the time and place of occurrence. On the above conspectus, he submits that applicants are liable to be enlarged on bail.

Having heard the learned counsel for applicants, the learned A.G.A. for State and the learned counsel representing first informant this Court finds that it is an undisputed fact that the deceased is the wife/daughter-in-law of the applicants. The issue as to whether the father-in-law was present at the time and place of occurrence or not is a disputed defense of applicant Ram Singh which can more appropriately be dealt with by the trial court. Prima facie, the presence of accused-applicant Ram Singh at the time and place of occurrence is established as per the dying declaration of the deceased herself. No such material has been placed by the learned counsel for applicants on the basis of which the very credibility of the dying declaration could be doubted. In view of above, there is nothing on record to prima facie indicate that applicant Ram Singh was not present at the time and place of occurrence. So far as applicant Kolindar Singh is concerned, it is evident that applicant Kolindar Singh is the husband of the deceased. Admittedly, the death of the deceased has occurred in the house of applicants and within seven years of her marriage therefore beyond shadow of doubt it can be said that the death of the deceased is a dowry death. Since the applicant Kolindar Singh is the husband of the deceased and also an inmate of the house when the occurrence occurred therefore, the burden is upon the applicant Ram Singh to not only explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act. However, prima facie, upto this stage, applicant (Kolindar Singh) has miserably failed to discharge the said burden. Admittedly, in the dying declaration the deceased has clearly implicated applicant Kolindar Singh i.e. her husband for making demand of additional dowry to the tune of rupees five lacs from his parents. Apart from above, the Court further finds that bail applications of other two charge-sheeted co-accused have already been rejected by this Court after taking into consideration the facts and circumstances of the case. Up to this stage, no such evidence could be pointed out by the learned counsel for applicants on the basis of which it can be said that the case of present applicants is distinguishable from other two named/charge-sheeted co-accused whose bail applications have already been rejected by this Court.

Furthermore, upon perusal of material brought on record, nature and gravity of offence, evidence, complicity of the accused, accusation made, upon perusal of record this Court finds that applicants are named and charge-sheeted accused, applicant Kolindar Singh is the husband of the deceased, whereas applicant Ram Singh is the father-in-law of the deceased, in the dying declaration of the deceased the role of pouring kerosene and thereafter immolating the deceased has been assigned to other three charge-sheeted accused including father-in-law of the deceased, namely, Ram Singh, the bail applications of similarly situate and circumstanced co-accused have already been rejected by this Court, the Court does not find any distinguishable feature in the case of present applicant Ram Singh to distinguish his case from other two named and charge-sheeted co-accused and grant him bail, the issue as to whether the father-in-law along with others was residing at separate/distant place and therefore his presence at the time and place of occurrence is impossible is the disputed defense of applicant Ram Singh which can more appropriately be dealt with during the course of trial, but no inference qua the innocence of applicant Ram Singh can be inferred on the basis of same, applicant Kolindar Singh is the husband of the deceased and specific allegations regarding demand of dowry have been made by the deceased in her dying declaration against her husband i.e. applicant Kolindar Singh, her father-in-law as well as her mother-in-law regarding demand of additional dowry to the tune of rupees five lacs and commission of cruelty, the death of the deceased has taken place at her marital home and that too within seven years of her marriage therefore, the same is a dowry death, consequently by reason of above and also the fact that applicant Kolindar Singh is the husband of the deceased and an inmate of the house therefore the burden is upon the applicant Kolindar Singh not only to explain the manner of occurrence but also his innocence as per Sections 106 and 113-B of the Evidence Act, however, upto this stage, the applicant Kolindar Singh has miserably failed to discharge the said burden therefore, irrespective of the fact that the applicants are men of clean antecedents having no criminal history to their credit, the period of incarceration undergone, the police report under Section 173 (2) CrPC has already been submitted therefore the entire evidence sought to be relied upon by the prosecution against the applicants stands crystalized therefore the varied submissions urged by the learned counsel for applicants, this Court does not find any new good or sufficient ground to enlarge the applicants on bail.

Accordingly, the applications for bail thus fail and are liable to be rejected.

They are accordingly rejected. ”

Learned counsel for applicant contends that though the applicant is husband of deceased, a named and charge sheeted accused, yet he is liable to be enlarged on bail. The charge sheet/police report in terms of Section 173(2) Cr.P.C. was submitted by Investigating Officer against applicant on 5.8.2022. Upon submission of aforesaid charge sheet, cognizance was taken upon same and the charge sheeted accused were summoned. Since offence complained of is triable exclusively by the Court of sessions, therefore, jurisdictional Magistrate in line with the section 209 Cr.P.C., committed the case to the Court of sessions. Resultantly, aforesaid seasons trial came to be registered. Thereafter concerned Judge proceeded with the trial. He framed charges against charge sheeted accused which was denied and they demanded trial. As a result, trial procedure commenced. On the above premise, learned counsel for applicant contends that inspite of the fact that a period of almost one year and six months has rolled by from the date of trial, not a single prosecution witness has yet appeared before Court below. Therefore liberty of applicant cannot be curtailed on account of lackadaisical approach of the prosecution in pursuing the trial. 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 basis of above, it is thus contended that It is lastly contended that right to speedy trial is now recognized as the fundamental right of an accused. The aforesaid right of applicant stands infringed on account of non-cooperative conduct of the prosecution in pursuing the trial On the above conspectus, he therefore contends 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. Applicant is in jail since 22.6.2022. As such, he has undergone more than one year and two years and three months of incarceration. The police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by prosecution against applicants stands crystalized. However, upto this stage no such incriminating circumstance has emerged necessitating the custodial arrest of applicant during the pendency of trial. It is thus urged 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. and the learned counsel for first informant have opposed the present application. Much emphasis was laid to the observations made by this Court in the earlier order passed by this Court. On the above premise, they submit that since applicant is husband of the deceased, a named and charge sheeted accused, therefore no indulgence be granted by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this repeat application for bail, with reference to record at this stage.

Having heard the learned counsel for applicant, the learned A.G.A. for State, upon perusal of material brought on record, evidence, nature and gravity of offence as well as complicity of applicant, accusation made coupled with the fact that applicant is husband of the deceased, a named and charge sheeted accused, charge-sheet/police report was submitted against applicant by Investigating Officer in terms of Section 172 (3) Cr.P.C. on 5.8.2022, thereafter the jurisdictional Magistrate committed the case to the Court of Sessions, on account of above, sessions trial came to be registered against applicant and other charge sheeted accused, concerned sessions judge framed charges on 26.4.2023, inspite of the fact that a period of one year and six month has rolled by from the date of framing of charge order, not a single prosecution witness has yet deposed before Court below, the right to speedy trial is now recognized as a fundamental right of an accused vide judgement of Supreme Court in A. R. Antulay (Supra), on account of lackadaisical approach of the prosecution in pursuing the trial, the aforesaid right of accused applicant stands infringed, the clean antecedents of applicant, the period of incarceration undergone, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet inspite of above, the learned A.G.A. nor the learned counsel for first informant could point out any such circumstance from the record necessitating custodial arrest of applicants during the pendency of trial, the judgement of Supreme court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373, therefore, irrespective of the objections raised by the learned A.G.A. and the leanred counsel for first informant, in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

Accordingly, the bail application is Allowed.

Let the applicant Kolindar Singh @ Kolindra, 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:-

(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.

(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.

(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 DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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.

(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/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.”

6. Learned counsel for applicant submits that applicant-Ram Singh is the father-in-law of deceased. Except for the aforesaid fact, there is no such distinguishing feature on the basis of which, the case of present applicant could be so distinguished from co-accused Kolindar Singh @ Kolindra so as to deny him bail. He, therefore, submits that in view of above and for the facts and reasons recorded in the bail order of bailed out co-accused Kolindar Singh @ Kolindra, present applicant is also liable to be enlarged on bail on the ground of parity.

7. It is then contended by the learned counsel for applicant that the charge sheet/police report in terms of Section 173(2) Cr.P.C. was submitted by the Investigating Officer against applicant and other accused on 05.08.2022. Upon submission of aforesaid charge sheet, cognizance was taken upon same and the charge sheeted accused were summoned. Since offence complained of is triable exclusively by the Court of sessions, therefore, jurisdictional Magistrate in line with the section 209 Cr.P.C., committed the case to the Court of sessions. Resultantly, aforesaid seasons trial came to be registered. Thereafter concerned Judge proceeded with the trial. He framed charges against charge sheeted accused which were denied by them and they demanded trial. As a result, trial procedure commenced. On the above premise, learned counsel for applicant contends that inspite of the fact that a period of almost one year and six months has rolled by from the date of framing of charge order, not a single prosecution witness has yet appeared before Court below. Therefore liberty of applicant cannot be curtailed on account of lackadaisical approach of the prosecution in pursuing the trial. 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 basis of above, it is thus contended that right to speedy trial is now recognized as the fundamental right of an accused. The aforesaid right of applicant stands infringed on account of non-cooperative conduct of the prosecution in pursuing the trial On the above conspectus, he therefore contends that applicant is liable to be enlarged on bail.

8. Even otherwise, applicant is a man of clean antecedents inasmuch as, he has no criminal history to his credit except the present one. Applicant is in jail since 09.05.2022. As such, he has undergone more than 2 years and 7 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. However, up to this stage, no such circumstance has emerged necessitating the custodial arrest of the applicant during the pendency of trial. On the above premise, he 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.

9. Per contra, the learned A.G.A. for State-opposite party-1 and Mr. Anil Kumar Srivastava, the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named and charge sheeted accused and also the father-in-law of deceased, therefore, he does not deserve any indulgence by this Court. Much emphasis was laid to the observations made by this Court in the earlier order passed by this Court. On the above premise, they submit that since applicant is husband of the deceased, a named and charge sheeted accused, therefore no indulgence be granted by this Court. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant in support of this repeat application for bail, with reference to record at this stage.

10. Having heard, the learned counsel for applicant, the learned A.G.A. for State-opposite party-1, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made, complicity of accused and coupled with the fact that applicant is husband of the deceased, a named and charge sheeted accused, charge-sheet/police report was submitted against applicant by Investigating Officer in terms of Section 172 (3) Cr.P.C. on 5.8.2022, thereafter, the jurisdictional Magistrate committed the case to the Court of Sessions, on account of above, sessions trial came to be registered against applicant and other charge sheeted accused, concerned sessions judge framed charges on 26.04.2023, inspite of the fact that a period of one year and six months has rolled by from the date of framing of charge order, not a single prosecution witness has yet deposed before Court below, the right to speedy trial is now recognized as a fundamental right of an accused vide judgement of Supreme Court in A. R. Antulay (Supra), on account of lackadaisical approach of the prosecution in pursuing the trial, the aforesaid right of accused applicant stands infringed, the clean antecedents of applicant, the period of incarceration undergone, police report in terms of Section 173 (2) Cr.P.C. has already been submitted against applicant, as such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystalized, yet inspite of above, the learned A.G.A. nor the learned counsel for first informant could point out any such circumstance from the record necessitating custodial arrest of applicant during the pendency of trial, the judgement of Supreme court in Sumit Subhaschandra Gangwal and another Vs. The State of Maharashtra and Another, 2023 Live Law (SC) 373, therefore, irrespective of the objections raised by the learned A.G.A. and the leanred counsel representing first informant, in opposition to the present repeat application for bail, but without making any comments on the merits of the case, applicant has made out a case for bail.

11. Accordingly, the bail application is allowed.

12. Let the applicant-Ram Singh, be released on bail in the aforesaid case crime number 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:-

(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.

(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.

(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 DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(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.

(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.

13. 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. ”

8. It is argued that the applicant is a lady and is entitled to get benefit under Section 480 of B.N.S.S. The applicant is in jail since 9.12.2024.

9. Per contra learned counsel for the State opposed the prayer for bail and argued that the applicant is named in the dying-declaration of the deceased recorded under Section 164 Cr.P.C. and she has been assigned the role of troubling the deceased along with mother-in-law, as such the prayer for bail be rejected.

10. After hearing the counsel for the parties and perusing the record, it is evident that the applicant is the jethani of the deceased. Co-accused Kolindar Singh @ Kolindra (husband) and Ram Singh (father-in-law) have been granted bail. The statement of the deceased recorded under Section 164 Cr.P.C. does not assign any overt-act to the applicant but only states of the fact that the applicant and mother-in-law used to trouble her for dowry. The role of causing knife injuries to the deceased has been assigned to three other co-accused being father-in-law, mother-in-law, nandoi Harendra. The applicant is a lady.

11. Looking to the facts and circumstances of this case, the nature of evidence and also the absence of any convincing material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant may be enlarged on bail.

12. Let the applicant-Anu @ Ashoka, 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:-

i) The applicant will not tamper with prosecution evidence and will not harm or harass the victim/complainant in any manner whatsoever.

ii) The 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.

(iii) 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.

(iv) The applicant will not misuse the liberty of bail in any manner whatsoever. 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 her, in accordance with law, under section 174-A I.P.C.

(v) 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 her in accordance with law and the trial court may proceed against her under Section 229-A IPC.

(vi) The trial court may make all possible efforts/endeavour and try to conclude the trial expeditiously after the release of the applicant.

13. 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 and send the applicant to prison.

14. The bail application is allowed.

15. Pending application(s), if any, shall stand disposed of.

(Samit Gopal, J.)

Order Date :- 28.4.2025

Gaurav Kuls