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2010 DIGILAW 782 (ALL)

ANAND SINGH v. STATE OF U. P.

2010-03-09

Y.K.SANGAL

body2010
JUDGMENT Y.K. SANGAL, J.-Heard learned Counsel for the appellant/ applicant, learned AGA for the State and perused the record. 2. As. per prosecution case, the applicant/husband in the company of other accused (Father and Mother) committed the offence of dowry death of his wife for non-fulfillment of demand of one lac Rupees. It is also said that out of that one lac amount, Rs. 25,000/ - were paid to the accused persons on 26.12.2003. Rest of the amount was not paid and cause of death was administration of poison within 7 years of marriage. 3. Trial Court punished all the three accused persons for the offence under sections 498-A/34 and 304-B/34 and section 4 of the Dowry Prohibition Act read with section 34 IPC. Aggrieved by this judgment and order, co-accused mother and father of the appellant have also filed an appeal being No. 175/2008 and they were released on bail during the pendency of the appeal. Appellant has also filed this appeal on 19.2.2008 which is already admitted for hearing. First bail prayer on his behalf was rejected by Hon'ble Justice Allah Raham (now retired) vide order dated 18.3.2008. Now this is second bail application to release him on bail. 4. As per defence case, no demand of dowry was made either in the marriage or after the marriage. Deceased was patient of mental nervousness, depression since the year, 2000 and was being treated by Dr. Chauhan for the same who also referred her for treatment to Professor of medical college who was produced as D.W. 1 on behalf of the accused persons and he corroborated the case of defence. It is undisputed fact that appellant was on bail during the trial and there is no report of misuse of liberty of bail during the trial. It was argued that now there is no possibility to win over the witnesses and absconding the appellant. Appellant remain in jail 1 and 114 months during trial and now he is in jail from last 26 months after conviction from the Trial Court. Substantial portion of sentence awarded already served out by him. Learned Counsel for the appellant cited law Kamal v. State of Haryana, and argued that already substantial period of sentence awarded to the appellant has already been served out. He is entitled to be released on bail. This case was also under section 304-B IPC before the Apex Court. Substantial portion of sentence awarded already served out by him. Learned Counsel for the appellant cited law Kamal v. State of Haryana, and argued that already substantial period of sentence awarded to the appellant has already been served out. He is entitled to be released on bail. This case was also under section 304-B IPC before the Apex Court. It was further pressed that with similar role co-accused mother and father of the appellant have already been released on bail during pendency of their appeal by this Court. 6. It was argued that seeing pendency of the matters in the Court, this appeal may take another 3 to 4 years for final disposal. The conviction recorded by the Trial Court cannot operate as a presumption pf existence of reasonable ground for believing that the accused has been guilty of the offence. Presumption is there in favour of the accused that he is innocent till he is not held guilty by the final Court. If the accused-appellant is kept in detention till the decision of the appeal, it would not have advanced the cause of justice, specially when the appeal was not likely to be heard in near future. Learned Counsel. also pressed that very often the conviction of the appellant is set aside in appeal and if he had suffered the entire sentence - or major part of it on the date of decision of the appeal, certainly the prejudice would be caused to him. 7. On the other hand, learned AGA argued that it is a serious offence of dowry death and appellant is husband of the deceased. It was expected from the appellant husband to keep his wife in his safe custody. It was duty to explain how and in what circumstances, her death has taken place. In reply, learned Counsel for the appellant argued that the deceased was patient of mental nervousness and depression which is corroborated by the Dr. D.W. -1 from Medical College who also said that in such patient tendency to commit suicide is developed and found. She had committed suicide in the night. Immediately, she was taken to the hospital by the husband and got admitted there for her treatment and her parents were also informed by the husband/ applicant himself in the same night. D.W. -1 from Medical College who also said that in such patient tendency to commit suicide is developed and found. She had committed suicide in the night. Immediately, she was taken to the hospital by the husband and got admitted there for her treatment and her parents were also informed by the husband/ applicant himself in the same night. If he would have been instrumental in administering the poison to her and pressurizing her to commit suicide, he will get admitted her in the hospital for treatment or he will inform her parents in the night, it is not probable and natural. Learned Counsel says that learned Trial Court has not properly considered this aspect of the case. 8. Learned Counsel argued that it was a case of F.I.R and statement of the informant that she was badly beaten and poison was administered to her forcibly and she was having injuries on her face but no such injury was found by the Doctor at the time of conducting the post-mortem. It was further argued that as per case of the FIR itself that demand of Rs. one lac Was only for augmentation of a business and Rs. 25,000/- were paid for this purpose. Learned Counsel argued that applicant and his parents reside in two districts. To whom Rs. 25,000/- were paid, there is conflicts in FIR and statement of P.W.1. Payment made as such not found in the Statement recorded under section 161 Cr.P.C by the Investigating Officer. It was further argued that for the sake of arguments, if it is taken correct (which is not admitted) that if for augmentation of the business, if any demand was made by the appellant, it will not be taken as demand of dowry as defined under section 4 of the Dowry Prohibition Act and the accused cannot be held guilty under section 304-B IPC. In support of his argument, learned Counsel for the appellant had cited case law Appa Saheb and others v. State of Maharashtra, Devendra Singh v. State, and Chandrika Devi v. State, where it was held by the Court that a demand for money for some urgent domestic expenses or for purchasing of manure or for raising some constructions and also to start business the same cannot be termed as demand of dowry as the term normally understood under section 4 of the D.P. Act. 9. 9. Learned Counsel further argued that learned Trial Court should not have jumped to the conclusion that such demand has caused embarrassment to the deceased that she made attempt to commit suicide . Being a penal statute, the, Court should be cautious and careful so that suspicion, conjectures and surmises may not influenced the judgment. There was no earlier complaint or FIR against the appellant that she was being harassed and teased by the appellant for non-fulfilment of the demand of dowry. No such complaint was made by them when the Panchayatnama was being prepared. Only with the interference of the M.L.A this FIR was lodged. It is admitted by the P.W. 3 (mother of the deceased) that the appellant had raised objection for cremation of dead body by the parents of the deceased. Forcibly, they had taken away the dead body of ' the deceased at Fatehpur with the interference of the M.L.A and Police. They were also intending to take away• the five years born baby out the wedlock but the appellant had succeeded in keeping the baby with him and the baby is still with the parent of the appellant. 10. Considering the arguments of both parties Counsel and above facts, and also taking into consideration law laid down referred above, without expressing any opinion on the merit of the case, I find it a fit case to release the accused-appellant on bail. Accordingly, let the accused appellant Anand Singh be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the Court concerned. 11. The amount of fine shall be deposited along with the bail bonds. Copy of the bail bonds be sent to this Court within• one month to be placed on record. Bail Granted.