Research › Search › Judgment

Allahabad High Court · body

2019 DIGILAW 81 (ALL)

AJAY KUMAR v. STATE OF U. P.

2019-01-09

RAJUL BHARGAVA

body2019
JUDGMENT Rajul Bhargava, J. Heard Sri Ronak Chaturvedi, learned counsel for the appellant and the learned A.G.A. for the State and perused the impugned judgment and order of the trial court. 2. This second bail application has been moved on behalf of accused-appellant as the prayer has been rejected earlier vide an order dated 30.11.2017 by this Court on merits. 3. The learned counsel for the appellant has stated that the second bail on behalf of appellant has been moved on the ground of long period of detention as the appellant is in jail for the past more than six years and the maximum sentence imposed by the trial court is ten years. It is argued that since the appellant has already undergone major part of the sentence and the appeal is not likely to be heard in near future, therefore, the appellant is entitled to be enlarged on bail. 4. Before dealing with the submissions made by learned counsel for grant of bail to appellant on the ground of long detention, I may briefly record the prosecution version and the evidence appearing against the appellant. According to prosecution, a report was lodged by one Ram Kishan on 11.4.2013 stating therein that he solemnized marriage of his daughter (deceased) to the appellant on 17.5.2011 with lot of fanfare and had also given sufficient dowry in the marriage but the appellant who happens to be husband of the deceased and other in-laws were not satisfied with the dowry and soon after the marriage itself she was subjected to cruelty and she was also assaulted for the same. It is further stated that on 9.4.2013 i.e. before two days of unfortunate death of the deceased, the appellant had brought the deceased at her matrimonial home. The first informant received an information that his daughter has been done to death and her dead body is lying at her matrimonial home. The autopsy on the dead body was conducted by PW-5, Dr. S.K. Varshrey on 12.4.2013 and he noticed several ante-mortem injuries on the person of deceased besides a ligature mark measuring 28 cm. x 2 cm around the neck and bones underneath were found fractured. The doctor opined that the cause of death was strangulation. The autopsy on the dead body was conducted by PW-5, Dr. S.K. Varshrey on 12.4.2013 and he noticed several ante-mortem injuries on the person of deceased besides a ligature mark measuring 28 cm. x 2 cm around the neck and bones underneath were found fractured. The doctor opined that the cause of death was strangulation. The appellant was charged for offence under Sections 498-A, 304-B I.P.C. and Section 3/4 of D.P. Act with alternative charge under Section 302 I.P.C. r/w Section 149 I.P.C. and 4 of D.P. Act. The suggestion made to the witnesses was that the deceased had committed suicide. The learned trial judge after scanning the evidence arrived at a finding that the deceased died about two years of her marriage on account of strangulation and the prosecution has fully established that soon before the death she was subjected to cruelty for demand of dowry and held that offence under Section 304-B I.P.C. and Section 4 of D.P. Act has been proved beyond shadow of reasonable doubt. However, I am constrained to observe that the learned Judge acquitted the appellant of the alternative charge under Section 302 I.P.C. while holding that since the offence under Section 304-B I.P.C. has been fully established by the prosecution, therefore, the appellant cannot be convicted for the offence under Section 302 I.P.C. The finding on which the appellant has been acquitted under Section 302 I.P.C. is totally whimsical and against the evidence on record. It was not disputed by the defence that the deceased died at her matrimonial home on account of strangulation and the defence case that she committed suicide is absolutely preposterous, yet the court below without taking into account the provisions of Section 106 of Evidence Act acquitted the appellant of charge under Section 302 I.P.C. and sentence of ten years rigorous imprisonment was awarded under Section 304-B I.P.C. only.? 5. Learned counsel for the appellant has placed reliance on the judgments of Hon'ble the Apex Court rendered in SLP No.4041 of 2018 (Ratan Singh Vs. the State of Madhya Pradesh and others), (2) Takht Singh and others Vs. State of Madhya Pradesh, (2001) 10 SCC 463 (3) Kamal Vs. State of Haryana, (2004) 13 SCC 526 , (4) Salim Javed Vs. State of Rajasthan, (2006) 9 SCC 602 and Fazal Vs. State of Uttar Pradesh, (2012) 5 SCC 752 . 6. the State of Madhya Pradesh and others), (2) Takht Singh and others Vs. State of Madhya Pradesh, (2001) 10 SCC 463 (3) Kamal Vs. State of Haryana, (2004) 13 SCC 526 , (4) Salim Javed Vs. State of Rajasthan, (2006) 9 SCC 602 and Fazal Vs. State of Uttar Pradesh, (2012) 5 SCC 752 . 6. On the basis of aforesaid judgments, learned counsel for the appellant has argued that as the appellant has already undergone more than half of the sentence, he may be enlarged on bail. 7. Now, the question is whether a convict be enlarged on bail in the pending appeal without going into the merits of case and evidence? With utmost humility and profound respect, I may record that in none of the judgments/orders of Hon'ble the Apex Court, the nature, gravity of offence and facts and circumstances of the case have been considered. Therefore, in my opinion, the aforesaid judgments are of no help to hold the proposition that solely on the ground of long incarceration without looking other factors, bail may be granted to a convict. There are good number of authorities rendered by Hon'ble the Apex Court and the Division Bench of this Court to hold that long period of detention in pending appeal by itself is not a good ground for bail in renewed plea. At this juncture, I may observe that the appellant was convicted by the judgment and order dated 13.1.2017 and thus the appeal is pending for about two years. 8. Reference may be made to the judgment of the Apex Court rendered in the case of Rajesh Ranjan Yadav vs. CBI through its Director reported in, (2007) 1 SCC 70 wherein the Apex Court has held as under: “..........None of the decisions cited can be said to have laid down any absolute and unconditional rule about when bail should be granted by the Court and when it should not. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail”. It all depends on the facts and circumstances of each case and it cannot be said there is any absolute rule that the mere fact that the accused has undergone a long period of incarceration by itself would entitle him to be enlarged on bail”. “..........While it is true that Article 21 is of great importance because it enshrines the fundamental right to individual liberty, but at the same time a balance has to be struck between the right to individual liberty and the interest of society. No right can be absolute, and reasonable restrictions can be placed on them. While it is true that one of the considerations in deciding whether to grant bail to an accused or not is whether he has been in jail for a long time, the Court has also to take into consideration other facts and circumstances, such as the interest of the society”. 9. The Hon'ble Apex Court has observed in the case of Siddharth Vasisth @ Manu Sharma vs. State (NCT), 2008 6 JT 467 (SC) that if the criminal appeal would not be heard for long and not disposed of within a 'measurable distance' of time, it would not be in the interest of justice to keep the accused in jail for number of years and it would be appropriate, if the power under section 389 Cr.P.C. is exercised in favour of the appellant-accused. I have carefully gone through Siddharth Vashistha's case (supra). It is nowhere held by the Hon'ble Apex Court that merely on the basis of the period detention in jail after conviction, all the accused be released on bail without looking to the merit of the case and nature of the offence. The afore-cited observations made by the Hon'ble Apex Court in Siddharth Vasistha's case (supra) should not be misunderstood to mean that after conviction, the appellant-accused in all cases be released on bail merely by saying that the appeal would not be heard and disposed of within a 'measurable distance' of time. The afore-cited observations made by the Hon'ble Apex Court in Siddharth Vasistha's case (supra) should not be misunderstood to mean that after conviction, the appellant-accused in all cases be released on bail merely by saying that the appeal would not be heard and disposed of within a 'measurable distance' of time. Had the Hon'ble Apex Court intended to lay down that after conviction, all the accused would be released on bail merely on the basis of the period of detention in jail, then it can very well be said that after conviction, all the accused be released on bail without going into merit of the case and nature of the offence, as the hearing of the appeals would take long time. 10. What would be a 'measurable distance' of time for granting bail to the accused, if the appeal has not been decided, has not been considered by the Hon'ble Apex Court in case of Siddharth Vasistha's case (supra). 11. The Hon'ble Apex Court in the case of Smt. Akhtari Bi vs. State of M.P., (2001) 4 JT 40 (SC), in which it is observed that “it is incumbent upon the High Courts to find ways and means by taking steps to ensure the disposal of criminal appeals, particularly such appeals where the accused are in jail, that the matters are disposed of within the specified period not exceeding 5 years in any case. Regular Benches to deal with the criminal cases can be set up, where such appeals be listed for final disposal”. The Hon'ble Apex Court further observed that “We feel that if an appeal is not disposed of within the aforesaid period of 5 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 5 years, the delay for any period, which is requisite in preparation of the record and the delay attributable to the convict or his counsel can be deducted.” In the said judgment, it is further held by the Hon'ble Apex Court that “there may be cases where even after the lapse of 5 years, the convicts may, under the special circumstances of the case, be held not entitled to bail pending the disposal of the appeals filed by them.” 12. Therefore, having regard to the observations made by the Hon'ble Apex Court in the case of Smt. Akthari Bi vs. State of M.P.(supra), I am not inclined to release the appellant-accused on bail in present case.? 13. The Hon'ble Apex Court in the case of Vijay Kumar vs. Narendra & others, (2002) 9 SCC 364and Ramji Prasad vs. Rattan Kumar Jaiswal, (2002) 9 SCC 366 has observed that “In considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the Court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence, and desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder”. 14. The above position was highlighted again in Kishori Lal vs. Rupa & others, (2004) 7 SCC 638 and in Vasant Tukaram Pawar vs. State of Maharashtra, (2005) 5 SCC 281 . Therefore, having regard to the observations made by the Hon'ble Apex Court in the cases mentioned herein-above, the appellant-accused cannot be released on bail merely on the basis of the period of his detention in jail after conviction without looking to the merit of the case and nature of offence committed by him. 15. It is, therefore, futile to attempt to lay down any invariable rule or formula in such matter. The decision of the Hon'ble Apex Court on the matters about granting or refusing bail should not be understood to have been laid down any invariable rule to be observed with mathematical precision. 16. For the reasons mentioned herein-above, prayer for bail of the appellant-accused Ajay Kumar is hereby rejected. 17. However, taking into account that the appellant is in jail more than for the past six years, the office is directed to prepare typed paper-book positively within three months and list this case for final hearing on 15.5.2019 before appropriate Court.