HONBLE RAJEEV MISRA,J. - (1.) Heard Mr. Rakesh Pati Tiwari, learned counsel for applicant and learned A.G.A. for State.
(2.) This second application for bail has been filed by Mr. Ashok Kumar, seeking his enlargement on bail in Case Crime No. 1020 of 2017, under sections 498-A, 34-B I.P.C. and Section 3/4 D.P. Act, P.S. Hafizganj West, Distirct Bareilly, during the pendency of trial.
(3.) The first bail application of applicant was rejected by this Court by a detailed order dated 10.10.2018. For ready reference, the same is reproduced herein under: "Heard Mr. Upendra Kumar Singh, learned counsel for the applicant and the learned A.G.A. for the State. This application for bail has been filed by the applicant Ashok Kumar seeking his enlargement on bail in Case Crime No. 1020 of 2017 under Sections 498A, 304B I.P.C and Section 3/4 Dowry Prohibition Act, P. S. Hafizganj, District- Bareilly during the pendency of the trial in the above mentioned case crime number. From the record it appears that the marriage of the applicant was solemnized with Smt. Kajal @ Sarla Devi on 15.03.2016. However, just after the expiry of a period of one year and six months from the date of the marriage an unfortunate incident occurred on 22.09.2017 in which the wife of the applicant namely Smt. Kajal @ Sarla Devi died. The F.I.R. in respect of the aforesaid incident was lodged on 22.09.2017 not by the applicant or any of the family member but by the father of the deceased, wherein eight persons namely mother-in-law, husband i.e. the applicant herein, three Nanads and three Nandois were named as the accused. The aforesaid F.I.R. came to be registered as Case Crime No. 1020 of 2017 under Sections 498A, 304B I.P.C. and Section 3/4 Dowry Prohibition Act P. S. Hafizganj, District- Bareilly. The post mortem of the body of the deceased was conducted on 23.09.2017 and accordingly a post mortem report dated 23.09.2017 was prepared. The doctor who conducted the autopsy on the body of the deceased opined that the cause of death of the deceased is asphyxia due to ante mortem hanging. The Police upon completion of statutory investigation of the aforesaid case crime number in terms of Chapter XII Cr.P.C. submitted a charge sheet, upon which cognizance has been taken. What has happened thereafter has not been stated in the affidavit filed in support of the bail application. But the learned counsel for the applicant submits that the charges have not been framed as yet. According to the learned counsel for the applicant, the death has occurred within seven years from the date of the marriage, therefore, the presumption arising out an offence under Section 304B I.P.C. is standing against the applicant. However, the applicant is innocent, in view of the fact that during the pendency of the investigation, an application along with affidavit was filed by the father-in-law as well as the mother-in-law of the applicant before the Investigating Officer stating therein that the deceased was suffering from mental disorder and on account of the aforesaid she has committed suicide. The applicant and his family members are innocent. Another affidavit dated 17.02.2018 was filed on behalf of the father of the deceased before the Senior Superintendent of Police, Bareilly on the same lines as stated in the earlier affidavit. It is urged that at the time disposal of the bail application of the applicant, the father-in-law as well as the mother-in-law of the applicant appeared before the Court below and filed their affidavit supporting the plea for bail on behalf of the applicant. It was also urged that the deceased was suffering from mental disorder on account of the aforesaid she has committed suicide. The applicant is innocent having no criminal history. The applicant is in jail since 02.08.2018 and therefore entitled to be released on bail. On the cumulative strength of the aforesaid submissions, it is urged that the burden upon the applicant in terms of Section 304-B I.P.C. stands discharged and therefore the applicant is entitled to be enlarged on bail particularly when the applicant is in jail since 02.08.2018. Per contra, the learned A.G.A. has opposed the prayer for bail. It is submitted that the incident has occurred within seven years from the date of marriage, the applicant is under heavy burden to discharge the same. However, up to this stage the applicant has not been able to discharge the aforesaid burden. It is also submitted that the application along with an affidavit submitted before the Senior Superintendent of Police cannot be looked into, as the affidavit may not be treated as evidence as per mandate of Section 3 of the Indian Evidence Act. With regard to the affidavit filed by the father-in-law and the mother-in-law of the applicant at the time of the hearing of the bail application of the applicant before the Court below, it is submitted by the learned A.G.A. that the said affidavit also does not help the applicant in any way. The affidavit which has been filed is contrary to the statement of the father-in-law and mother-in-law recorded under Section 161 Cr.P.C. Further more the said affidavits are not evidence, and therefore the same cannot be relied upon. On the cumulative strength of the aforesaid submission learned A.G.A. submits that no case for bail is made out and consequently, the bail application of the applicant is liable to be rejected. Having considered the submissions made by the learned counsel for the applicant, the learned A.G.A. for the State and upon perusal of the evidence brought on record, without making any comments on the merits of the case, I do not find any good reason to exercise my discretion in favour of the accused applicant. Thus, the bail application stands rejected. It is expected from the learned trial court to gear up the trial and make necessary endeavour to conclude the same within a period of one year, provided the applicant would render all necessary co-operation in early conclusion of the trial. Office is directed to communicate the copy of this order forthwith to concerned court for necessary compliance." ;