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2022 DIGILAW 1720 (ALL)

Sunil Gupta v. State of U. P.

2022-11-01

RAJEEV MISRA

body2022
JUDGMENT : 1. Heard Mr. Jawahir Yadav, the learned counsel for applicant, the learned A.G.A. for State and Mr. R.P.S. Chauhan, along with Anand Yadav, learned Advocate, holding brief of Mr. Kailash Nath, the learned counsel representing first informant. 2. Perused the record. 3. This application for bail has been filed by the applicant, Sunil Gupta seeking his enlargement on bail in Case Crime No.227 of 2021, under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station- Sarpataha, District- Jaunpur, during the pendency of trial. 4. It transpires from record that marriage of the applicant namely, Sunil Gupta was solemnized with Sandhya on 27.04.2016 in accordance with Hindu Rites and Customs. From the aforesaid wedlock, initially a son namely, Om was born who is now aged about 04 years. Subsequently, a daughter namely, Nandani was born who is now said to be aged about one year and six months. 5. After expiry of a period of much more than five years and six months from the date of marriage of applicant, an unfortunate incident occurred on 24.12.2021, in which the wife of applicant namely, Sandhya died as she committed suicide by hanging herself. The information regarding the aforesaid incident was given by the applicant to his father-in-law. 6. As a result, subsequently, father-in-law of the applicant lodged an F.I.R. dated 24.12.2021 which was registered as Case Crime No.227 of 2021, under Sections 498A, 304B I.P.C. and Section 3/4 D.P. Act, Police Station-Sarpataha, District-Jaunpur. In the aforesaid F.I.R., three persons namely, Sunil Gupta (husband), Badri Prasad(father of the applicant) and Shobavati (mother of the applicant) have been nominated as named accused. 7. The gravamen of the allegations made in the F.I.R. is to the effect that named accused were not satisfied with the amount of goods and dowry brought by the deceased to her marital home at the time of her marriage. As a result, demand of additional dowry was raised. However, on account of non fulfillment of additional demand of dowry physical/mental cruelty was committed upon the deceased by the accused. 8. After lodging of the afore-mentioned F.I.R., Investigating Officer proceeded with the statutory investigation of concerned case crime in terms of Chapter XII of the Cr.P.C. He examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the prosecution story. 9. 8. After lodging of the afore-mentioned F.I.R., Investigating Officer proceeded with the statutory investigation of concerned case crime in terms of Chapter XII of the Cr.P.C. He examined the first informant and other witnesses under Section 161 Cr.P.C. Witnesses so examined have supported the prosecution story. 9. The inquest of the body of the deceased was conducted on 24.12.2021. In the opinion of the Panch witnesses, the nature of death of the deceased was characterised as homicidal. 10. Thereafter, the post-mortem of the body of deceased was conducted on 24.12.2021. In the opinion of Autopsy Surgeon, the cause of death of deceased was asphyxia as a result of anti-mortem hanging. The Autopsy Surgeon found following ante-mortem injuries on the body of the deceased:- "An complete ligature mark present around neck (between chin & injured cash leg, obliquely placed size of ligature 26.00 x 1.5 cm as of as 6 cm on the back of neck left side 6 cm from right from right side left and 20 cm from left ear libs on cut section of ligature mark hard, lea they ecchymosed parchment like seen colour of ligature mark brown black." 11. On the basis of above and other material collected by Investigating Officer up to this stage, he came to the conclusion that the complicity of named accused Smt. Shobhavati (mother-in-law) of deceased is prima-facie established in the crime in question. He accordingly opined to submit the charge-sheet against her. Ultimately, Investigating Officer submitted the charge sheet dated 21.03.2022 whereunder the mother-in-law of the deceased has been charge-sheeted under Sections 498A and 304B I.P.C. and 3/4 Dowry Prohibition Act whereas the investigation in respect of other named accused was said to be pending. Subsequently, the Investigating Officer submitted the supplementary charge-sheet dated 26.05.2022 whereby applicant and father-in-law of the deceased have also been chargesheeted under Sections 498A, 304B and 3/4 Dowry Prohibition Act. 12. At the very outset, the learned counsel for applicant submits that the father-in-law and the mother-in-law of the deceased have already been enlarged on bail by this Court. Subsequently, the Investigating Officer submitted the supplementary charge-sheet dated 26.05.2022 whereby applicant and father-in-law of the deceased have also been chargesheeted under Sections 498A, 304B and 3/4 Dowry Prohibition Act. 12. At the very outset, the learned counsel for applicant submits that the father-in-law and the mother-in-law of the deceased have already been enlarged on bail by this Court. For ready reference, the same are reproduced hereinunder :- "Bail order of Badri Prasad, father-in-law of deceased" "By means of this bail application the applicant has prayed to be enlarged on bail in Case Crime No. 227 of 2021 at Police Station- Sarpataha, District- Jaunpur under Sections 498A, 304B IPC and Section 3/4 of the Dowry Prohibition Act. The applicant is in jail since 09.05.2022. The bail application of the applicant was rejected by learned Sessions Judge, Jaunpur on 18.05.2022. Shri Jawahir Yadav, learned counsel for the applicant contends that the applicant has been falsely implicated in the instant case. The applicant is the father-in-law of the deceased. The applicant did not harass the deceased nor did he demand dowry. The applicant never interfered in the marital life of the deceased. The husband of the deceased resided at Gujarat for livelihood. He could not take his wife to Gujarat because of paucity of funds and accommodation. The victim was depressed on account of prolonged separation of her husband. On the fateful day she succumbed to depression and committed suicide. The postmortem report opines the cause of death as asphyxia due to antemortem hanging. No abnormality was detected in the trachea and the hyoid bone was intact. The post mortem report references the ligature marks which are consistent with the hanging. The applicant did not aid or abet the suicide. Learned counsel for the applicants claims congruency in role and seeks parity in relief granted to co-accused Smt. Shobhavati who has been enlarged on bail by this Court by order dated 15.07.2022 in Criminal Misc. Bail Application No. 14636 of 2022. Learned counsel for the applicant contends that the applicant does not have any criminal history apart from the instant case. Shri Paritosh Kumar Malviya, learned AGA for the State could not satisfactorily dispute the aforesaid submissions from the record. Learned AGA does not contest the criminal history of the applicant as disclosed in the bail application. Learned counsel for the applicant contends that the applicant does not have any criminal history apart from the instant case. Shri Paritosh Kumar Malviya, learned AGA for the State could not satisfactorily dispute the aforesaid submissions from the record. Learned AGA does not contest the criminal history of the applicant as disclosed in the bail application. I see merit in the submissions of the learned counsel for the applicant and hold that the applicant is entitled to be enlarged on bail. In the light of the preceding discussion and without making any observations on the merits of the case, the bail application is allowed. Let the applicant- Badri Prasad 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 subject to following conditions. (i) The applicant will not tamper with the evidence during the trial. (ii) The applicant will not influence any witness. (iii) The applicant will appear before the trial court on the date fixed, unless personal presence is exempted. (iv) The applicant shall not directly or indirectly make inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court to any police officer or tamper with the evidence. In case any averment made in the bail application or the submissions during the argument are found to be false or in case of breach of any of the above condition, the prosecution shall be at liberty to move bail cancellation application before this Court." Bail order of Smt. Shobhavati, mother-in-law of the deceased Heard learned counsel for the applicant as well as learned A.G.A. for the State. The instant application under Section 439 Cr.P.C. has been filed by the applicant with the prayer to enlarge her on bail in Case Crime No.227 of 2021, under Sections 498-A, 304-B I.P.C. & Section 3/4 Dowry Prohibition Act-1961, Police Station-Sarpataha, District-Jaunpur during the pendency of trial. In brief, the procescution case is that complainant Premlal Gupta (father of the deceased) lodged First Information Report on 24.12.2021 at 13:12 hrs. alleging therein that the marriage of his daughter was solemnized with Sunil Gupta in the year 2016. In brief, the procescution case is that complainant Premlal Gupta (father of the deceased) lodged First Information Report on 24.12.2021 at 13:12 hrs. alleging therein that the marriage of his daughter was solemnized with Sunil Gupta in the year 2016. Sufficient dowry was given but Sunil Gupta (husband), Smt. Shobhavati (mother-in-law)- applicant herein and Badri Prasad (father-in-law) were not pleased with the dowry and they used to torture and harrass her for dowry. It is further alleged therein that few days before the occurrence, brother of the deceased had purchased the land in Ahemdabad regarding which her husband Sunil Gupta was pressurising her to give the aforesaid land to him. On 24.12.2021 at 05:30 a.m., the informant received information that his daughter had died. It is further alleged in the F.I.R. that applicant and her family members have killed his daughter by strangulation. It is submitted by the learned counsel for the applicant that applicant is the mother-in-law of the deceased. It is further submitted that applicant is living separately from the family of the deceased and in this regard, family register is annexed as 'Annexure No.3' (pages-21 and 22) of the application. It is further submitted that only general allegations were levelled against the applicant in the F.I.R. and no specific role has been assigned to her. It is further submitted that cause of death was asphyxia as a result of ante mortem hanging. Learned A.G.A. opposed the bail application and stated that deceased met with unnatural death within seven years of marriage. It is further submitted that at the time of occurrence, the applicant was residing with the deceased. I have gone through the file. Although the deceased met with unnatural death within seven years of marriage but only general allegations have been levelled against the applicant in the F.I.R. It is alleged in the F.I.R. that husband of the deceased was pressurizing her that her brother would give the land purchased in Ahemdabad to him (husband of the deceased). Perusal of the post-mortem report indicates that cause of death was asphyxia as a result of ante mortem hanging. Keeping in view of the facts and circumstances of the case, evidence available on record and having heard the submissions of learned counsel of both sides, I find it to be a fit case of bail. The bail application is, accordingly, allowed. Keeping in view of the facts and circumstances of the case, evidence available on record and having heard the submissions of learned counsel of both sides, I find it to be a fit case of bail. The bail application is, accordingly, allowed. Let the applicant Smt. Shobhavati involved in the aforesaid case be released on bail on her furnishing a personal bond with two sureties each in the like amount to the satisfaction of the court concerned with the following conditions:- (i) The applicant shall not tamper with the prosecution evidence. (ii) The applicant shall not threaten or harass the prosecution witnesses. (iii) The applicant shall appear on the date fixed by the trial court. (iv) The applicant shall not commit an offence similar to the offence of which the applicant is accused, or suspected of the commission. (v) The applicant shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade such person from disclosing facts to the Court or to any police officer or tamper with the evidence. In case of breach of any of the above conditions, it shall be a ground for cancellation of bail. Identity, status and residence proof of the applicant and sureties be verified by the court concerned before the bonds are accepted." 13. Mr. Jawahir Yadav, the learned counsel for applicant submits that allegations made against the charge-sheeted accused are similar. Named accused have been charge-sheeted under common sections. As such criminality alleged against applicant and such other charge-sheeted accused is common. Same cannot be separated or segregated. As such case of present applicant is similar and identical to the above two charge-sheeted accused. Moreover on the alleged criminality, two of the charge-sheeted accused have already been enlarged on bail. As such for the facts noted above and also the facts and reasons recorded in the bail order of co-accused, applicant is also entitled to be enlarged on bail on the ground of parity. 14. According to the learned counsel for applicant, from the wedlock of applicant with deceased, two children, one son namely, Om, aged about 4 years and one daughter namely, Nandani, aged about one and a half years on date were born. 14. According to the learned counsel for applicant, from the wedlock of applicant with deceased, two children, one son namely, Om, aged about 4 years and one daughter namely, Nandani, aged about one and a half years on date were born. Looking into the precarious family condition of the applicant, learned counsel for applicant contends that it cannot be presumed by any stretch of imagination that applicant will cause the death of the deceased i.e. his wife. 15. Referring to the post-mortem of the deceased, he submits that except for the ligature mark, no other external/internal injury was found on the body of the deceased. The same clearly speaks of the bonafide of applicant. 16. There is nothing on record to suggest that applicant has even abetted instigated or conspired in the commission of crime in question. Learned counsel for applicant submits that deceased was a short tempered lady and she took the extreme step of committing suicide by hanging herself. 17. Placing reliance upon the judgment of the Apex Court in Kahkashan Kausar @ Sonam & ors. Vs. State of Bihar 2022 SCC Online 162, the learned counsel for applicant submits that allegations made in the F.I.R. with regard to demand of additional dowry and consequently commission of physical/mental cruelty upon the deceased on account of non-fulfillment of demand of additional dowry are devoid of material particulars. Except for bald allegation made in the F.I.R. and the statement of the mother of the deceased wherein mother of the deceased has stated that demand of additional dowry was made and as same was not fulfilled consequently, physical/mental cruelty was committed upon the deceased no evidence regarding the question of demand, manner of demand, time of demand etc. have been brought on record. As such same are liable to be ignored. 18. It is lastly submitted that applicant is in jail since 9.5.2022. As such he has undergone almost five months of incarceration. In case, the applicant is enlarged on bail, he shall not misuse the liberty of bail and shall cooperate with the trial. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The charge-sheet having been submitted against applicant the evidence sought to be relied upon by the prosecution against the applicant stands crystallized. Applicant is a man of clean antecedents inasmuch as he has no criminal history to his credit except the present one. The charge-sheet having been submitted against applicant the evidence sought to be relied upon by the prosecution against the applicant stands crystallized. As such custodial arrest of the applicant is not absolutely necessary during the pendency of the trial. On the cumulative strength of above, learned counsel for applicant submits that applicant is liable to be enlarged on bail. 19. Per contra, the learned A.G.A. and Mr. R.P.S. Chauhan, the learned counsel for first informant have opposed this application for bail. Learned counsel for the first informant vehemently submits that it is an undisputed fact that applicant is the husband of deceased. The death of the wife of applicant has occurred in unnatural circumstances and within seven years of marriage. Therefore, by virtue of the provisions contained in Section 113B of the Evidence Act, there is a statutory presumption that the death of the deceased is a dowry death. However, applicant has failed to rebut this presumption up to this stage. Reference has also been made to the provisions contained in Section 106 of the Indian Evidence Act. On the basis of same, it is urged that by learned counsel for informant that occurrence in question has occurred in the house of applicant as such burden is upon the applicant to explain the manner of occurrence as he is an inmate of the house. However, the said burden has not been discharged by applicant up to this stage. In support of his contention, the learned counsel for first informant has placed reliance upon the judgement of the Apex Court in Trimukh Maroti Kirkam Vs. State of Maharashtra (2006) 10 SCC 626. 20. Learned counsel for first informant has then invited the attention of the Court to the F.I.R. as well as the statement of the mother of the deceased as recorded under Section 161 Cr.P.C. to buttress his submission and that there was a demand of additional dowry which was persistent in nature. However as the additional demand of dowry was not fulfilled consequently, physical/mental cruelty was committed upon the deceased. As such the death of the deceased is a dowry death. 21. According to Mr. However as the additional demand of dowry was not fulfilled consequently, physical/mental cruelty was committed upon the deceased. As such the death of the deceased is a dowry death. 21. According to Mr. R.P.S. Chauhan, the learned counsel for first informant since the allegation made in the F.I.R. and the statement of the mother of the deceased as recorded under Section 161 Cr.P.C. clearly go to show that there was a demand of additional dowry right from the inception and the same was persistent and continuous, consequently, physical/mental cruelty was committed upon the deceased on account of non-fulfillment of the additional demand of dowry. In view of above, the inescapable conclusion is that death of the deceased having occurred within 07 years of marriage, therefore, present case is case of dowry death, therefore, squarely covered under Section 304B I.P.C. As such, applicant does not merit any indulgence by this Court. 22. Learned A.G.A. for State has also opposed the present application. He has however adopted the arguments advanced by the learned counsel for first informant. 23. In rejoinder, the learned counsel for applicant has disputed the submissions urged by the learned counsel for first informant. He submits that allegations made in the F.I.R. as well as the statement of the mother of the deceased as recorded under Section 161 Cr.P.C. are devoid of material particulars with regard to the alleged demand of dowry and commission of physical/mental cruelty upon the deceased on account of non-fulfillment of additional demand of dowry. The said allegations are vague and concocted. Reliance is placed upon the judgment of the Apex Court in Kahkashan Kausar @ Sonam & ors. Vs. State of Bihar(supra), wherein following has been observed in paragraphs 8, 18, 19, 20, 21 and 22. "8. (2018) 14 SCC 452 "6. The Courts should be careful in proceeding against the distant relatives in crimes pertaining to matrimonial disputes and dowry deaths. The relatives of the husband should not be roped in on the basis of omnibus allegations unless specific instances of their involvement in the crime are made out." 18. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. The above-mentioned decisions clearly demonstrate that this court has at numerous instances expressed concern over the misuse of section 498A IPC and the increased tendency of implicating relatives of the husband in matrimonial disputes, without analysing the long term ramifications of a trial on the complainant as well as the accused. It is further manifest from the said judgments that false implication by way of general omnibus allegations made in the course of matrimonial dispute, if left unchecked would result in misuse of the process of law. Therefore, this court by way of its judgments has warned the courts from proceeding against the relatives and in-laws of the husband when no prima facie case is made out against them. 19. Coming to the facts of this case, upon a perusal of the contents of the FIR dated 01.04.19, it is revealed that general allegations are levelled against the Appellants. The complainant alleged that 'all accused harassed her mentally and threatened her of terminating her pregnancy'. Furthermore, no specific and distinct allegations have been made against either of the Appellants herein, i.e., none of the Appellants have been attributed any specific role in furtherance of the general allegations made against them. This simply leads to a situation wherein one fails to ascertain the role played by each accused in furtherance of the offence. The allegations are therefore general and omnibus and can at best be said to have been made out on account of small skirmishes. Insofar as husband is concerned, since he has not appealed against the order of the High court, we have not examined the veracity of allegations made against him. However, as far as the Appellants are concerned, the allegations made against them being general and omnibus, do not warrant prosecution. 20. Furthermore, regarding similar allegations of harassment and demand for car as dowry made in a previous FIR. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. Respondent No. 1 i.e., the State of Bihar, contends that the present FIR pertained to offences committed in the year 2019, after assurance was given by the husband Md. Ikram before the Ld. Principal Judge Purnea, to not harass the Respondent wife herein for dowry, and treat her properly. However, despite the assurances, all accused continued their demands and harassment. It is thereby contended that the acts constitute a fresh cause of action and therefore the FIR in question herein dated 01.04.19, is distinct and independent, and cannot be termed as a repetition of an earlier FIR dated 11.12.17. 21. Here it must be borne in mind that although the two FIRs may constitute two independent instances, based on separate transactions, the present complaint fails to establish specific allegations against the in-laws of the Respondent wife. Allowing prosecution in the absence of clear allegations against the in-laws Appellants would simply result in an abuse of the process of law. 22. Therefore, upon consideration of the relevant circumstances and in the absence of any specific role attributed to the accused appellants, it would be unjust if the Appellants are forced to go through the tribulations of a trial, i.e., general and omnibus allegations cannot manifest in a situation where the relatives of the complainant's husband are forced to undergo trial. It has been highlighted by this court in varied instances, that a criminal trial leading to an eventual acquittal also inflicts severe scars upon the accused, and such an exercise must therefore be discouraged." 24. When the allegations made in the F.I.R. and the statement of the mother of the deceased as recorded under Section 161 Cr.P.C. are examined in the light of the observations made by the Supreme Court in the aforementioned judgement as noted hereinabove, prima-facie it appears that the allegation with regard to demand of additional dowry and consequential commission of physical/mental cruelty upon the deceased are vague and devoid of material particulars. 25. Learned counsel for applicant has referred to the judgement of Supreme Court in the judgement of Supreme Court in Shivaji Chintappa Patil Vs. 25. Learned counsel for applicant has referred to the judgement of Supreme Court in the judgement of Supreme Court in Shivaji Chintappa Patil Vs. State of Maharashtra 2021 (5) SCC 626 and on basis thereof he submits that up to this stage, the prosecution has failed to discharge the primary burden regarding the presence of the accused in the house at the time of occurrence and therefore, no burden is upon the applicant in terms of Section 106 of the Indian Evidence Act. 26. Having heard the learned counsel for applicant, the learned A.G.A. for State, Mr. R.P.S. Chauhan, the learned counsel for first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant and coupled with the fact that family condition of the applicant is precarious inasmuch as applicant has a son, aged about 4 years and a daughter, aged about one and a half years, the omission of material particulars with regard to demand of additional dowry and consequential commission of physical/mental cruelty upon the deceased in the F.I.R., as well as the statement of the mother of the deceased as recorded under Section 161 Cr.P.C., except for the ligature mark, no other injury external or internal was found on the body of the deceased, the co-accused who have been charge-sheeted under same section, as such the criminality alleged against charge-sheeted accused being common and thus incapable of being separated or segregated, the co-accused having been enlarged on bail but without expressing any opinion on the merits of the case, applicant has made out a case for bail. 27. Accordingly, present application for bail is allowed. 28. Let the applicant- Sunil Gupta involved in aforesaid case crime number be released on bail 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) Applicant will not tamper with prosecution evidence. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 29. (ii) 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) Applicant will not indulge in any unlawful activities. (iv) Applicant will not misuse the liberty of bail in any manner whatsoever. 29. 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 of applicant and send him to prison. 30. The observations made hereinabove in this order are only for the purpose of discharging bail application.