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2009 DIGILAW 135 (ALL)

KISAN CHANDRA v. STATE OF U P

2009-01-15

RAJ MANI CHAUHAN

body2009
R. M. CHAUHAN, J. The learned A. G. A. has already filed objection against the prayer of bail. 2. This appeal has been filed by the accused-appellant Kisan Chandra, son of Vishwanath, resident of Village Mad-pawna, P. S. Ghanghata, District Sant Kabir Nagar, against the judgment and order dated 7. 7. 2007 passed by the learned Additional Sessions/special Judge (B. C. Act), Basti in S. T. No. 202 of 2004 (Case Crime No. 366 of 2003) State v. Kisan Chandra and others, whereby the learned Sessions Judge held the accused guilty under sections 304-B and 498 I. P. C. and section 4 of the D. P. Act, P. S. Ghanghata, district Sant Kabir Nagar. Consequently, the learned Sessions Judge has convicted and sentenced the ac cused to undergo RI for ten years and to pay fine of Rs. 2000/- under section 304-B I. P. C. , to undergo RI for two years and to pay fine of Rs. 1000/- under section 498 I. P. C. and to undergo RI of one year and to pay fine of Rs. 1000/- under section 4 of the D. P. Act. The sentence further directs that in case the accused fails to pay the amount of fine, he will further undergo additional RI for one month for each of the offences i. e. , under sections 304-B/498-A and sec tion 4 of the D. P. Act. All the sentences were ordered to run concurrently. 3. The prosecution case in brief is that the complainant Kauleshwar had married his daughter Anita to accused Kisan Chandra, son of Vishwanath, resi dent of Village Madpawna, P. S. Ghang hata, District Sant Kabir Nagar, sometimes three years back prior to the date of occur rence, when she went to her nuptial home following her marriage, her husband Kisan Chandra, her father-in-law Vishwanath and her younger father-in-law (Uncle in law) Jheenak expressed their dissatisfaction over the dowry, her father had presented to accused Kisan Chandra. They started a fresh demand of a golden chain and motor cycle from the deceased in the form of dowry. When their demand was not satis fied, they used to harass and torture her. They lastly caused her death on 31. 10. 2003 for demand of dowry. The complainant lodged the first information report of the occurrence at P. S. Ghanghata. When their demand was not satis fied, they used to harass and torture her. They lastly caused her death on 31. 10. 2003 for demand of dowry. The complainant lodged the first information report of the occurrence at P. S. Ghanghata. The Investi gating Officer after investigation submitted charge-sheet against the accused for the aforesaid offences, which later on gave rise to session trial as mentioned above. 4. Heard the learned Counsel for the appellant and the learned A. G. A on the prayer of bail during the pendency of ap peal. 5. The learned Counsel for the appel lant contends that all the three accused were tried by the learned Additional Ses sions Judge for the aforesaid offences. The prosecution allegation against all the ac cused are the same. The prosecution led the same evidence against all the accused. The learned Additional Sessions Judge found that the charges levelled against Vish-V wanath and Jheenak were not proved beyond all reasonable doubt. Consequently, he acquitted them of the charges levelled against them. Since, the evidence led by the prosecution against the accused was the same. Therefore, the charges against the present accused, who is the husband of the deceased could not be held to have been established beyond doubt. The finding of the learned Sessions Judge as against the present accused apparently appears to be not based on proper appreciation of the evidence on record. The present accused like the other co-accused was also entitled to the benefit of doubt. 6. The learned Counsel further con tends that in this case, accused is in jail since 30. 10. 2003. In this way, he has spent in jail more than the half sentence awarded by the Trial Court to him. There is no pos sibility that the appeal will be heard on merit in near future. The accused therefore, should not be detained till the disposal of the appeal. The accused deserves to be re leased on bail. 7. The learned Counsel in support of his contention has placed reliance on the case of Akhtari Bi (Smt.) v. State of Madhya Pradesh 2001 (42) ACC 857 (SC) and Kamal v. State of Haryana, 2006 (1) SCC (Crl.) 757 de cided by Honble Apex Court. 8. The learned A. G. A. opposed the bail and argued that the present accused is the husband of the deceased. 8. The learned A. G. A. opposed the bail and argued that the present accused is the husband of the deceased. Undisputedly, the deceased had met to unnatural death in her nuptial home within seven years of her marriage. The allegation of demand of dowry is there, which has been proved by the prosecution witnesses. As per prosecution case, the accused were demanding golden chain and motorcycle from the deceased in the form of dowry. The accused being husband of the deceased was beneficiary to the dowry. He therefore, cannot escape away from the criminal liability of the dowry death of his wife. In view of the nature of offence the accused does not deserve to be released on bail. 9. Considered the submissions of the learned Counsel for the appellant and the learned A. G. A. and gone through the case laws cited by the learned counsel for the appellant impugned judgment and the Trial Courts record. 10. In the case of Akhtari Bi (Smt.) v. State of Madhya Pradesh, 2001 (42) ACC 857 (SC) the Honble Apex Court has held that a criminal appeal filed by a convict should be decided by the High Court within five years of its filing. If the appeal is not disposed of within five years for no fault of the accused-appellant, the accused should be released on bail except in special circumstances. The relevant ob servation of the Honble Apex Court is be ing extracted below: "if an appeal is not disposed of within the aforesaid period of five years, for no fault of the convicts, such convicts may be released on bail on such conditions as may be deemed fit and proper by the Court. In computing the period of five years, the delay for any period, which is requisite in preparation of the rec ord and the delay attributable to the convict or his Counsel can be deducted. " 11. In case of Kamal v. State of Hary ana 2006 (1) SCC (Crl.) 757 the Honble Apex Court ordered to release an accused on bail in appeal filed by him where he had served two years and four months in jail out of the seven years of imprisonment awarded to him by the Trial Court. 12. " 11. In case of Kamal v. State of Hary ana 2006 (1) SCC (Crl.) 757 the Honble Apex Court ordered to release an accused on bail in appeal filed by him where he had served two years and four months in jail out of the seven years of imprisonment awarded to him by the Trial Court. 12. In this case, the accused has al ready spent more than the half of the sen tence awarded by the Trial Court to him, i. e. , he has spent five years and five months in jail out of the ten years sentence awarded by the Trial Court. Considered the submissions of the learned Counsel for the appellant and the learned A. G. A. 13. This appeal is pending since long and there is no possibility that it will be taken up for hearing in near future. Keep ing in view of the observations of the Honble Apex Court in the above cited cases as well as the submissions of the learned Counsel for the appellant, without prejudice to the merit of the appeal, let the accused-appellant convicted and sentenced in the session trial mentioned above, be released on bail during the pendency of the appeal on his executing personal bond with two sureties each in the like amount to the satisfaction of the Court concerned. The realisation of fine imposed by the Trial Court against the accused shall remain stayed during pendency of the appeal. .