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2009 DIGILAW 2707 (ALL)

DHARMENDRA KUMAR SHARMA @ BHOLA v. STATE OF U. P.

2009-07-29

VIJAY KUMAR VERMA

body2009
JUDGMENT VIJAY KUMAR VERMA, J.-The applicant Dharmendra Kumar Sharma @ Bhola, who is the husband of Smt. Radha Sharma (hereinafter to be referred as deceased), has sought bail by means of this application under section 439 Cr.P.C. in Case Crime No. 161 of 2008, under sections 304-B and 498-A IPC and 3/4 D.P. Act, P.S. Chandausi, District Moradabad. 2. The deceased Smt. Radha Sharma died due to ante-mortem injuries sustained by her on 7.3.2008 in the house of applicant. Her marriage with the applicant was solemnized about two years ago from her death. An FIR was lodged by her brother Deepak Kumar Sharma on 7.3.2008 at 11.30 p.m. at P.s. Chandausi (Moradabad), where a case under sections 304-B/498-A IPC and 3/4 D.P. Act was registered at Crime No. 161 of 2008 against Dharmendra Sharma (applicant herein), Jagdish Prasad, Mother-in-law, Jithani, Jeth Pushpendra Sharma and Devar. The allegations made in the FIR, in brief, are that the accused persons were causing harassment of the deceased making demand of rupees two lac in dowry. It is further alleged in the FIR that on 7.3.2008 at about 7.30 p.m., Dharmendra Kumar Sharma @ Bhola informed the complainant on telephone that his sister Smt. Radha had fallen down from roof and she was admitted in the hospital of Dr. Arvind in Sita Ashram, Chandausi, where she has been declared dead. On this information, the complainant with other persons reached the hospital and on making inquiry, he came to know that the accused persons had dashed the deceased from roof of the house, due to which, she died. Thereafter, FIR was lodged by the complainant at P.S. Chandausi. 3. After conducting mquest proceedings, the post-mortem of the dead body was got conducted on 8.3.2008. According to the post-mortem report (Annexure-7), ten ante-mortem injuries were found on the person of deceased, and she died due to shock and haemorrhage caused by these ante-mortem injuries. 4. I have heard lengthy arguments of Sri Viresh Mishra, learned senior Advocate, assisted by Sri Amit Mishra appearing for the applicant and A.G.A. for the State. 5. According to the post-mortem report (Annexure-7), ten ante-mortem injuries were found on the person of deceased, and she died due to shock and haemorrhage caused by these ante-mortem injuries. 4. I have heard lengthy arguments of Sri Viresh Mishra, learned senior Advocate, assisted by Sri Amit Mishra appearing for the applicant and A.G.A. for the State. 5. The first and foremost submission made by learned Counsel for the applicant was that when the deceased had gone to c611ect the clothes at the roof of the house, the monkeys had attacked on her and when she was running to save herself from attack of monkeys, she fell down from the roof of the house, due to which she sustained injuries and died in the hospital. Regarding sustaining injuries by the deceased by falling down from the roof as a result of attack of monkeys, my attention was drawn towards the photo state copies of the affidavits of Ram Kumar Sharma, Gyan Prakash Sharma and Mohan Lal (Annexure-5 containing paper Nos. 26 to 31) and it was submitted by learned Counsel that on the basis of these affidavits of independent persons, it is fully established that the deceased had sustained injuries due to falling down from the roof as a result of attack of monkeys. 6. Next submission made by learned Counsel was that on sustaining injuries by the deceased, she was carried to the hospital by the father of the applicant. It was also submitted by learned Counsel in this context that offence punishable under section 304-B IPC would not be made out in present case, as the deceased had sustained injuries due to falling down from roof after the attack of monkeys. 7. It was further submitted by learned Counsel that it was a simple case of accidental death of deceased, but with a view to blackmail the accused persons, the complainant had lodged FIR making false allegations about demand of dowry, whereas neither the accused persons made any demand of money in dowry, nor the complainant was in the capacity to pay Rs.2 lac. 8. It was also submitted by learned Counsel for the applicant that it is not the case of prosecution in the FIR or statements of the witnesses that any marpeet was caused with the deceased and hence, no third case can be made out by the Court about sustaining injuries by the deceased by beating. 8. It was also submitted by learned Counsel for the applicant that it is not the case of prosecution in the FIR or statements of the witnesses that any marpeet was caused with the deceased and hence, no third case can be made out by the Court about sustaining injuries by the deceased by beating. 9. Further submission made by learned Counsel was that the applicant is languishing in jail since 15.3.2008 and hence on the basis of long detention period in jail, he is entitled to be released on bail, because due to delay in trial, his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated. 10. Bail application was vehemently opposed by learned AG.A. contending that some ante-mortem injuries shown in the post-mortem report are possible to be caused only by beating the deceased and all the ante-mortem injuries are not possible to be caused by falling down from the roof and since there is sufficient evidence to show that the deceased was being subjected to cruelty and harassment by the accused persons making demand of dowry, hence the offence punishable under section 304-B Ire is clearly made out in this case. The contention of learned AG.A was that ante-mortem injuries on different parts of the person of deceased were found at the time of post-mortem examination, which are possible to be caused only by beating the deceased. It 'was also submitted in this context that ante-mortem injury Nos. 2 and 3 are on right side face, whereas antemortem injuries No.4 (contusion 10 c.m. x 8 c.m. in size) was on left upper arm and ante-mortem injury No. 5'(contusion 8 c.m. x 6 c.m. in size) was on back of left elbow, whereas ante-mortem injury No. 6 (contusion 25 c.m. x 15 c.m. in size) was on left thigh in which left femur was found fractured and since all these injuries are not possible to be caused by falling down from roof, hence an inference would be drawn that these injuries were caused by beating the deceased. It was also submitted in this context that no injury of monkey biting was found on the person of deceased at the time of post-mortem examination, which falsifies the defence version of making attack by monkeys on the deceased. 11. It was also submitted in this context that no injury of monkey biting was found on the person of deceased at the time of post-mortem examination, which falsifies the defence version of making attack by monkeys on the deceased. 11. It was also submitted by learned AG.A that after the death of deceased in the hospital, the applicant or any other accused did inform the police and on this basis also, it can very well be said that the deceased did not sustain all ante-mortem injuries due to falling down from roof. 12. Next submission made by learned AG.A. was that the FIR was lodged by brother of the deceased on the basis of the information, which was given to him by the applicant and other persons and hence, omission in the FIR about beating the deceased is not material in this case, because the complainant was not the eye-witness of the incident and whatever information was given to him, he had lodged the FIR on that basis. It was also submitted by learned AG.A that the deceased was badly beaten at the roof of the house, due to which her bangles were broken, pieces of which were found at the time of spot inspection made by the Investigating Officer, as is evident from the site plan (Annexure-3) and inspection note recorded in the case diary. The contention of learned AGA was that after beating the deceased on the roof and causing injuries to her, she was dashed from the roof, due to which, she fell down on the earth and hence, it cannot be said to be a case of sustaining accidental injuries, because all the anti-mortem injuries are not possible to be caused merely by falling down from the roof on the earth. 13. I have carefully gone through the ante-mortem injuries noted in the postmortem report (Annexure-7) and other material on record. There is sufficient prima facie evidence to show that the deceased was being harassed by the accused persons making demand of rupees two lac in dowry. The applicant or any other accused did not inform the police after the death of deceased as a result of alleged attack by the monkeys. The ante-mortem injuries are of different nature and on different part of the body. The applicant or any other accused did not inform the police after the death of deceased as a result of alleged attack by the monkeys. The ante-mortem injuries are of different nature and on different part of the body. Therefore, having regard to all these facts, but without expressing any opinion on merit of the case, in this heinous anti social crime, the applicant does not deserve bail. 14. In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others/ in which the Hon'ble Apex Court has held that mere long period of incarceration in jail would not be per se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution. 15. Consequently, the bail application is hereby rejected. 16. The Trial Court concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months making sincere efforts and applying the provisions of section 309 Cr.P.C. 17. S.S.P. Moradabad also is directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the Trial Court concerned and it must be ensured that the witnesses are produced in the session trial arising out of Case Crime No. 161 of 2008 of P.S. Chandausi without causing any delay. 18. The office is directed to send a copy of this order within a week to the Trial Court concerned and SSP, Moradabad for necessary action. Application Rejected.