At, High Court Of Judicature At Allahabad Lucknow Bench
By, THE HONOURABLE MR. JUSTICE ALOK MATHUR
For the Applicant: Vivek Tripathi, Alok Kumar Mishra, Advocates. For the Respondents: G.A.
1. Heard Sri Vivek Tripathi, counsel for the applicant as well as learned Additional Government Advocate for the State of U.P. through video conferencing in view of COVID-19 pandemic.
2. The present bail application has been filed on behalf of the applicant seeking bail in pursuance to the Case Crime No. 307 of 2018, Under Sections 302, 328 I.P.C. Police Station - Gauriganj, District - Amethi.
3. It has been submitted by learned counsel for applicant that applicant is the husband of the deceased who died on 14.08.2018. According to the first information report the brother of the deceased had gone to fetch the deceased on the same day but the family members of the applicant had mistreated him and threatened him with dire consequences and therefore he could not return home along with his sister(deceased). Subsequently, the complainant received a telephonic call stating that his daughter has been admitted in the hospital. On reaching the hospital, the complainantt discovered that his daughter has died and consequently the first information report was lodged.
4. It has been submitted by learned counsel for applicant that it has only in the visara report it has come that aluminum phosphate was found in the stomach and therefore prosecution has concluded that she died due to poisoning. He had submitted that it has falsely been stated in the first information report that the applicant and the family members fled from the hospital, while from the perusal of the inquest report, it would be clear that accused was present during the inquest and the same has been duly signed by the applicant and therefore the version in the first information report is absolutely false. He has further submitted that the applicant and the deceased were married for 14 years and out of their wedlock have four children and therefore it has highly improbable that the applicant would be responsible for murdering his own wife after 14 years of marriage.
5. He has also submitted that the medical report would indicate that no injury was found on the body of the deceased and on his count also he submits that the statement of the first information report is not unbelievable that the applicant and his family members had abused the deceased.
6. Learned counsel for applicant has further submitted that there is material on record which may connect the applicant to the incident causing death to the deceased. He has submitted that the aluminum phosphate is a substance which is commonly used in all the rural households for preserving food grains so that the same is not infected by insects and rats and therefor it being present in the house of the applicant is not unusual.
7. Learned A.G.A. on the other hand has opposed the bail application and submits that incident occurred at the residence of the applicant and therefore it is his responsibility to explain as to how the deceased has consumed the poison and the onus lies upon the applicant to prove his innocence. He fairly conceded that during investigation no material has come up which may indicate that on his family members has administered the poison to the deceased.
8. I have heard learned counsel for parties and perused the record.
9. From the material available on record, it is clear that on the date of incident, the brother of the deceased has gone to fetch her for the festival but on reaching the house of the applicant he was verbally abused and pushed out of the house and the deceased was not allowed to accompany him. Subsequently, a telephonic message was received intimating him about the admission of the deceased to the hospital and subsequently when he reached the hospital he discovered that she has already died. The medical report also does not indicate any injuries on the body of the deceased and it is only the poison which was discovered when the visra sample was sent for forensic examination.
10. The investigation was concluded and the chargesheet filed before the trial court. A perusal of the material collected and during the investigation it has not come as to who administered the poison (aluminum phosphate) to the deceased and therefore, it is clear that at this stage it is very difficult to link the applicant with the crime. The applicant is in custody since 25.11.2019 and thereby he has spent one and half year in custody. It has been stated that applicant is the villager and he has to look after his four minor children and this fact should also be taken into account by this Court while considering the application for bail.
11. Considering the facts and circumstances of the case, perusing the record and also considering the nature of allegations, arguments advanced by the learned counsel for the parties and specially looking the fact about the insufficiency of material which may link the applicant to the crime and also the fact that he is in custody for one and half year and has four minor children and, without expressing any opinion on the merit of the case, I find it to be a fit case for granting bail and needless to say that the court is directed to expedite the trial. The observations made in this application would not influence the trial court to proceed in accordance with law.
12. Let applicant/Dharmendra Kumar Mishra be released on bail in Crime No. 307 of 2018, Under Sections 302, 328 I.P.C. Police Station - Gauriganj, District - Amethi on his furnishing a personal bond and two sureties of the like amount to the satisfaction of the Magistrate/Court concerned, subject to following conditions:-
(i) The applicant shall file an undertaking to the effect that he shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through his counsel. In case of his absence, without sufficient cause, the trial court may proceed against him under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence, proclamation under Section 82 Cr.P.C. is issued and the applicant fails to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against him, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against him in accordance with law.
13. In case of br
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each of any of the above conditions, the Court below shall be at liberty to cancel the bail and proceed against the applicant in accordance with law. 14. The application stands disposed of. 15. The party shall file computer generated copy of order downloaded from the official website of High Court Allahabad, self attested by him alongwith a self attested identity proof of the said person(s) (preferably Aadhar Card) mentioning the mobile number(s) to which the said Aadhar Card is linked before the concerned Court/Authority/Official. 16. The concerned Court/Authority/Official shall verify the authenticity of the computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.