Anil Kumar vs State of U.P.

Heard Sri S.P.S. Raghav, learned Senior Advocate assisted by Ms. Ruchi Manjal, learned Advocate who appeared to press bail application on behalf of appellant Anil Kumar who has been convicted for the offence punishable under Sections 302 I.P.C. and he is to serve the sentence so provided in the judgment and Sri P.S. Pundir learned A.G.A. for the State.

Submission is that although the lady died inside the house of the appellant with burn injuries but it was simple case of accidental burn/death. On the facts it has been established that there was no motive for the appellant to commit offence and at the same time there is neither any direct evidence nor any eye witness and therefore initially the appellant was charged for the offence punishable u/s 304(B) I.P.C. and it is thereafter the matter proceeded u/s 302 I.P.C. and appellant has been convicted for that offence and thus on these facts the appellant is entitled for bail.

It is further submitted that it was a case of love marriage between the appellant and the deceased and three minor children are there and thus it is the appellant who alone can be said to be in a better position to look after the welfare of these minors and thus if appellant is not enlarged on bail then the minor''s interest will suffer.

Lastly, it is submitted that the appellant was granted bail during trial and he remained on bail for about a year and he never misused the same and now since after conviction he is in jail and as appeal is to take long time in its disposal, appellant is to be enlarged on bail.

In response to the aforesaid Sri Pundir, learned A.G.A. submits that the argument that appellant has no motive to commit the offence is totally misconceived as from the evidence and the findings so given by the trial court it is clear that there were repeated demand and other kind of torture for which even Panchayat has taken place and thus if with an idea to get rid of the lady the offence was committed then as on date in the light of the judgment of conviction appellant cannot claim any discretion of the court. Submission is that in these kind of offences argument of no direct evidence/ eye witness is also totally misconceived as if the incident is said to have taken place inside the house of the accused then only the family members can be said to be present and normally no outsider can be expected to be present to witness the incident.

Submission is that it is a case where the lady is found dead with 90 percent burn injuries and at the same time kerosene oil was also found to be present there in a container and thus on the added ground of the minor children being there and grant of bail for a year having not been misused, after conviction this may not be a fit case in which appellant may be entitled to be released on bail.

In view of the aforesaid, this Court is to decide the matter.

There is no dispute about the fact that the incident took place inside the house of the appellant and appellant alone is said to be present there. The mother of the appellant who was also made co-accused was found away with one of her grand son at Surat and thus it was in the presence of only and the only appellant the incident took place.

The argument that incident took place on account of just an accidental fire in which appellant also tried to save the lady as there were small burn injuries so received by the appellant also do not hold the field as on perusal of the record and in view of the findings given by the trial judge it is clear that the appellant has not taken any steps to get himself treated as no document/evidence in that connection has been filed/produced. Thus it is clear that a clever defence to save the appellant was taken but that was not substantiated by any evidence whatsoever.

Various findings so recorded by the learned trial judge certainly, as rightly argued can be matter of appreciation/scrutiny at the time of final hearing but at the same time as on date the finding of the learned trial judge is that in respect to various differences between two sides Panchayat has taken place and at the same time the information was given by a neighbour of the appellant about death of deceased then family members of the deceased came. It was found that some clothe was there in the mouth of the lady. There is no denial to the fact that lady has received 90 percent burn injuries. A defence was placed to save her by the appellant but with no proof in that respect

It is a matter of common experience that in these kind of death cases as submitted by Sri Pundir no direct evidence can be normally available. It is only the circumstances and the probability on which some times the court is to work.

The factum of the marriage being love marriage and presence of three minor children cannot dilute the gravity of the offence if that has been found to have been committed by the appellant on an ultimate analysis of the matter.

On consideration of the entire facts, oral and documentary evidence and totality of the circumstances learned Trial Judge recorded following findings on which conviction is based and thus as on today at an interlocutory stage this Court finds it difficult to disagree with the same and to enlarge the main/sole accused on bail. The findings so recorded/summarised by the learned Trial Judge can be thus quoted here for convenience-

i) Since after the marriage there was demand of money to be arranged for various purposes.

ii) To purchase the house family member of the deceased also paid the consideration.

iii) Evidence of Maarpeet/torture with the lady is there.

iv) Family member of the deceased and the appellant sat together and in Panchayat a decision not to harass in future was taken.

v) On 20.10.2002 at about 7.00 P.M. the neighbour of the appellant informed family member of the deceased about burn/death of the lady and there is no evidence that the appellant asked the neighbour to inform the family member of the deceased.

vi) When the family member of the deceased reached they found the deceased to have serious burn injuries and in the mouth clothe was inserted.

vii) On the spot kerosene oil in a container was found.

viii) Claim of the appellant to have burn injuries in the hand but no evidence of its treatment.

ix) When the family member of the deceased reached the spot the appellant absconded.

x) Claim is that appellant tried to save the lady but neither he raised any alarm nor informed any neighbour nor the doctor nor police personnel.

It is on the aforesaid consideration and the findings conviction is recorded.

It is not to be emphasised that a greater responsibility is always fastened on the husband as he is supposed to be the custodian of the safety/security of the lady who is primarily for him in an another family . Even in the cases of alleged suicidal death it is to be observed that unless there are compelling circumstances the happening is not there. Even the thought to depart from the living world, what to say for its execution is the toughest task and any sane person may not like it.

Here is the case where defence is of accidental fire but presence of kerosene oil, presence of appellant and defence to save the lady with a positive stand of his own burn without any proof/evidence.

At this stage the court is to refer the judgment given by the Apex Court in the case of Gomti v. Thakurdas and Ors. reported in (2007) 11 S.C.C. 160.

The observation of the Apex Court as made in para 6 is quoted here-

The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view.

In another judgment given by the Apex Court in case of Vinay Kumar Vs. Narendra and Others, and Ramji Prasad Vs. Rattan Kumar Jaiswal and Another, respectively same kind of observation was made.

The observation in this respect, as referred in the judgment given in the case of Gomti (Supra) is to be again quoted at this place-

In the cases involving conviction u/s 302 I.P.C., it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable u/s 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 the desirability of releasing the accused on bail after they have been convicted for committing the serious offence of murder.

In the recent judgment given by the Apex Court in case of State of Punjab v. Deepak Mattu reported in (2007) 11 SCC 319 and Anr. decision given in the case of Sidhartha Vashisth alias Manu Sharma v. State (NCT of Delhi) reported in Sidharth Vashisht @ Manu Sharma Vs. The State (N.C.T. of Delhi), it was clearly observed that possible delay in disposal of the appeal and presence of arguable point by itself may not be sufficient to grant bail and to suspend the sentence so awarded to the accused after the trial.

We are not to make any comment on the seriousness of the charge/offence but as on today as there is judgment of conviction this kind of death is to be viewed with all kind of seriousness. In all kind of death/murder paid is there but death of an innocent lady of another family under unusual circumstances in a family where she comes for the life time with a pious feelings can be felt to be more painful and thus that has to be dealt with more firmness. A feel of security for a married lady has to be there. It is a social offence and this is a confirmation of the growing trend of the torture and death of a lady who left her parental house in the hope of happiness of her future and thus innocence unless it is found to be established is not to be just believed on mere oral submission specially when the findings are recorded on a complete trial. The court will have to take into account and will have to keep in mind the factors in which these kind of deaths takes place. Although the Court is not to be swayed by general consideration but if that is found as a fact on trial then no leniency at an intervening/interlocutory stage unless there are very-very strong reasons/circumstances are there is to be shown and that too with a person who is said to be custodian of an innocent lady.

On consideration of these facts although the argument of presence of child is there but in view of the seriousness of the charges and gravity of the offence i.e. death of a young innocent lady in presence of the appellant in his own house do not convince this Court to release the discretion in his favour, specially when a defence was taken and that has been specifically disbelieved.

For the reasons recorded above, this Court is not satisfied that it is a fit case in which appellant is to be enlarged on bail on the ground that he enjoyed the bail for one year during trial and since 2006 after conviction he is in jail. It is not a case where appellant enjoyed bail for a long period and at the same time the appeal is also not so old that on a consideration of its pendency, concession in shape of grant of bail is to be given.

Accordingly, this Court declines to allow this application and thus bail application is rejected.

However, on the facts, it is observed that office will ensure that paper book is prepared with all expedition and appeal is listed for hearing, if possible, in the month of January, 2010.