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2023 DIGILAW 2628 (ALL)

Ashish Kumar @ Rinku v. State Of U. P.

2023-11-22

KRISHAN PAHAL

body2023
JUDGMENT : 1. List has been revised. 2. Heard Sri Ashwini Kumar Ojha, learned counsel for the applicant and Sri Pranshu Kumar, learned A.G.A. for the State and also perused the record. 3. The present anticipatory bail application has been filed on behalf of the applicant in F.I.R./Case Crime No. 1053 of 2007, under Sections 498-A, 304-B of IPC and Sections 3/4 of Dowry Prohibition Act, Police Station -Prem Nagar, District -Jhansi, with a prayer to enlarge him on anticipatory bail. PROSECUTION STORY:- 4. Brief facts of the case in a nutshell are that the marriage of the daughter of the informant was solemnized with the applicant as per Hindu Rites on 10.12.2005. The applicant and other family members are stated to have subjected her to cruelty for a demand of dowry. It is also alleged in the FIR that the electronic shop of the applicant got closed due to loss, as such, he is stated to have demanded an amount of Rs.50,000/-for business as dowry. The inability of the informant to provide them with Rs.50,000/-again impelled them to start committing cruelty to her and are even stated to have threatened the deceased that they shall kill her by sprinkling kerosene oil over her. 5. On 10.04.2007 at about 06:00 PM, the applicant and other family members are stated to have set the daughter of the informant afire whereby she sustained 85 per cent burn injuries and was admitted at Medical College in a serious condition. The applicant and other family members did not inform the informant about the incident. Somehow on 17.04.2007, he was informed telephonically by an anonymous neighbour regarding the incident. The informant reached the Medical College and was told by his daughter that she has been set afire by sprinkling kerosene over her by the applicant and his family members. The FIR of the informant could not be instituted at Prem Nagar, Jhansi on 19.04.2007. The same day, the victim started bleeding and she gave birth to a pre-mature four months old child who was also disposed of by her mother-in-law by burning him. The victim succumbed to her injuries the same day at about 05:00 PM. RIVAL SUBMISSIONS:- 6. Learned counsel for the applicant has stated that the applicant is maliciously being prosecuted in the present case due to ulterior motive and has apprehension of his arrest. The victim succumbed to her injuries the same day at about 05:00 PM. RIVAL SUBMISSIONS:- 6. Learned counsel for the applicant has stated that the applicant is maliciously being prosecuted in the present case due to ulterior motive and has apprehension of his arrest. He has nothing to do with the said offence as alleged by the prosecution. Learned counsel has further stated that the dying declaration was recorded the same day of incident i.e. on 10.04.2007 itself whereby she has stated that she sustained burn injuries by accident while cooking food. Learned counsel has further stated that the applicant himself had sustained about 8 per cent burn injuries in an attempt to save the victim (his wife) and the said medical report of the victim and the applicant have been annexed as Annexure-3 to the affidavit filed along with anticipatory bail application. It is next stated that the inquest proceedings of the deceased person was taken up on 20.04.2007 itself and the informant herein is panch witness no.1 in the said inquest proceedings. Had the applicant or any other person committed the said offence, the name of the applicant would have come up at the stage of recording of inquest proceedings itself. 7. Learned counsel for the applicant has next stated that the FIR is delayed by about three months and there is no explanation of the said delay caused. Even the application u/s 156(3) Cr.P.C. was moved before the concerned Magistrate on 23.04.2007 which itself is delayed. Learned counsel has further stated that despite knowing the fact that in the dying declaration, the victim has not levelled any charge of causing her death to the applicant, the final report (charge-sheet) has been submitted against him by the Investigating Officer which is unfair. 8. Learned counsel for the applicant has next stated that the cognizance was taken by the Magistrate vide order dated 17.09.2010 and the same along with another order dated 21.10.2013 challenged by the applicant and other co-accused persons by filing a petition u/s 482 Cr.P.C. No.21346 of 2022 and this Court was pleased to allow the said petition and the cognizance order and consequential proceedings were quashed vide order dated 29.08.2022. Subsequent to it, learned C.J.M., Jhansi again passed an order taking cognizance against the applicant on 26.06.2023. Subsequent to it, learned C.J.M., Jhansi again passed an order taking cognizance against the applicant on 26.06.2023. The said cognizance taking order was also challenged by filing another petition u/s 482 Cr.P.C. No.32340 of 2023, whereby the said petition was dismissed by this Court vide order dated 13.10.2023. 9. On this count, learned AGA has stated that the dying declaration is not a part of case diary, as such, cognizance order is proper as before taking cognizance to summon the accused persons, learned Magistrate is to consider the evidence collected during investigation and on the evidence, learned Magistrate has to apply his judicial mind. 10. In rebuttal, learned counsel for the applicant has stated that the said averments of learned AGA in the aforesaid petition are false as the dying declaration was very much on record and the applicant had taken certified copy of the same, which has been filed as Annexure-8 to the affidavit annexed with anticipatory bail application. It is next stated that the Investigating Officer did not care to open the dying declaration received in sealed cover by the concerned C.J.M. and get it recorded in his case diary, which was his utmost duty. The said callous approach of the Investigating Officer speaks volume of his acting in collusion with the informant, as such, complete investigation is tainted one. 11. Learned counsel for the applicant has further stated that subsequent to it, non-bailable warrants have been issued against the applicant on 07.08.2022. The applicant had applied for anticipatory bail before the Sessions Judge, Jhansi which was rejected on 01.11.2023 on the wrong averment that the proceedings u/s 82 & 83 Cr.P.C. are complete. In case, the anticipatory bail application of the applicant is allowed, he will not misuse the liberty and shall cooperate with trial. 12. On the other hand, learned A.G.A. has vehemently opposed the prayer for grant of anticipatory bail on the ground that the applicant is running from pillar to post and has stalled the trial for 16 long years and he is not cooperating in trial. Learned AGA has fairly conceded the fact that only non-bailable warrants have been issued against the applicant and that too on 07.08.2022, subsequent to fresh cognizance taking order dated 26.06.2023. Learned AGA has further stated that the arguments tendered at bar pertain to regular bail application u/s 439 Cr.P.C. and cannot be agitated u/s 438 Cr.P.C.. Learned AGA has fairly conceded the fact that only non-bailable warrants have been issued against the applicant and that too on 07.08.2022, subsequent to fresh cognizance taking order dated 26.06.2023. Learned AGA has further stated that the arguments tendered at bar pertain to regular bail application u/s 439 Cr.P.C. and cannot be agitated u/s 438 Cr.P.C.. However, learned AGA has also not disputed the fact that the informant is the panch witness no.1 in the inquest proceedings. CONCLUSION:- 13. The present case seems to be blatant misuse of dowry laws and the exception has to be drawn in such cases. It seems to be clear cut case of false implication, as such, the provision of Section 438 Cr.P.C. are attracted in it. The paragraph no.41 of the judgment of this Court passed in Shivam Vs. State of U.P. and Another, reported in AIROnline 2021 All 484 is applicable to the present case as the most potent and relevant piece of evidence i.e. dying declaration has not been taken into account earlier on. 14. After taking into consideration the fact that the dying declaration, the deceased had sustained burn injuries on account of accident and also taking into consideration the fact that the applicant himself had sustained 8 per cent burn injuries in trying to extinguish the fire sustained by the deceased person coupled with the fact that the informant was panch witness in the inquest proceedings, I find it a fit case to enlarge the applicant on anticipatory bail. 15. Without expressing any opinion upon ultimate merits of the case either ways which may adversely affect the trial of the case, the anticipatory bail application of the applicant is allowed. 16. In the event of arrest of the applicant, Ashish Kumar @ Rinku involved in the aforesaid case crime number, shall be released on anticipatory bail till the conclusion of trial on furnishing a personal bond with two sureties each in the like amount to the satisfaction of the Presiding Officer/Court Concerned, with the conditions that:- i. that the applicant shall make himself available for interrogation by a police officer as and when required; ii. that 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 him from disclosing such facts to the court or to any police officer or tamper with the evidence; iii. that the applicant shall not leave India without previous permission of the court; iv. that the applicant shall not tamper with the evidence during the trial; v. that the applicant shall not pressurize/ intimidate the prosecution witness; vi. that the applicant shall appear before the trial court on each date fixed unless personal presence is exempted; 17. In case of breach of any of the above conditions, the court concerned shall have the liberty to cancel the bail granted to the applicant. 18. It is made clear that observations made in granting anticipatory bail to the applicant shall not in any way affect the learned trial Judge in forming his independent opinion based on the testimony of the witnesses.