Adarsh alias Kaptan vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this bail application u/s 439, Cr. P.C. has been made on behalf of the applicant Adarsh alias Kaptan S/o Sobran Singh, in Case Crime No. 554 of 2007 (Case No. 43 of 2008), under Sections 498A, 304B, I.P.C. and 3/4 D.P. Act, P.S. Sadar, district Agra.

The applicant is the husband of Smt. Geeta, who died due to unnatural death within seven years of her marriage with applicant. An F.I.R. was lodged by Girraj Singh, father of the deceased, on 2.8.2007 at P.S. Sadar, Agra, where a case u/s 498A, 304B, I.P.C. and Section 3/4 of D.P. Act was registered at Crime No. 554 of 2007 against Sobran Singh (Father-in-law), Sheela (Mother-in-law), Adarsh alias Kaptan (applicant herein), Teetu (Devar) Chandra Kanta (Nanad) and Rajani (Devarani). The allegations made in the F.I.R., in brief, are that after marriage of deceased with accused Adarsh alias Kaptan in June, 2002, the accused persons began to cause her harassment making demand of dowry. It is further alleged that with a view to keep his daughter happy, the complainant gave a she-buffalo to the accused persons, but after one year, they demanded rupees one lac for starting medicine shop and when their demand was not fulfilled, they committed the murder of deceased on 2.8.2007.

I have heard lengthy arguments of Sri Ali Hasan and Sri K.S. Chahar, advocates, appearing for the applicant, Sri Arvind Kumar, Advocate representing the complainant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that the deceased had committed suicide, but in the post-mortem report, the doctor has wrongly mentioned the cause of death due to asphyxia ''as a result of strangulation. The contention of the learned Counsel in this context was that hyoid bone of the deceased was found intact at the time of post mortem examination, which shows that the deceased had committed suicide by hanging and it was not a case of strangulation as noted in the post mortem report (Annexure-2). It was also submitted by learned Counsel in this context, that Ram Chandra Nagar Khatta colony was established by the grandfather of the applicant, in which sale deed of one plot was executed in the name of complainant and his son Uttam, but entire money was not paid by them and when on the day of incident, demand to pay the rest money of sale deed was made by the deceased from her brother and maternal cousin, they refused to pay the amount and hence being disturbed, the deceased committed suicide by hanging.

Placing reliance on Appasaheb and Anr. v. State of Maharashtra, LVII (2007) ACC 544: 2007 (1) ACR 538 (SC), it was further submitted by learned Counsel for the applicant that making demand of any money for the purpose of business does not come in the category of dowry under Dowry Prohibition Act and hence, the offence punishable u/s 304B, I.P.C. would not be made out in present case, because rupees one lac are said to have been demanded by the accused for opening the medical shop.

Next submission made by learned Counsel for the applicant was that trial of the applicant has been held up due to the order dated 31.7.2008 passed by this Court in Transfer Application No. 545 of 2008, Vikash v. Sobran and others Transfer Application No. 545 of 2008 and hence, on this ground, the applicant deserves to be released on bail, because he cannot be confined in jail for indefinite period without trial. The contention of the learned Counsel was that due to stay order granted by this Court in transfer application, the trial of the accused cannot proceed further and since the disposal of transfer application would take long time due to heavy pendency of fresh cases in this High Court, hence the applicant, who is languishing in jail since 22.8.2007, deserves to be released on bail on this ground. It was also submitted by learned Counsel that on the basis of long detention period in jail also, the applicant is entitled to be released on bail, because due to delay in trial, his fundamental right of speedy trial envisaged in Article 21 of the Constitution is being violated.

Bail application was vehemently opposed by learned Counsel for the complainant and A.G.A. contending that it is a clear case of committing murder of the deceased by strangulation and since her murder was committed in the house of the applicant, hence in this heinous crime, he should not be granted bail. Regarding the cause of death of deceased, it was further submitted by learned Counsel for the complainant that the findings recorded in the post mortem report (Annexure-2) shows that it is a clear case of strangulation and not of hanging, as the ligature mark in hanging is always oblique, whereas in present case, as per post mortem report, the ligature mark on the neck of deceased was horizontal and that too on the right side alone.

Next submission made by learned Counsel regarding the cause of death was that in para 11 of the affidavit, which has been filed in support of the bail application, the deceased is said to have killed and it is nowhere stated in this affidavit that the deceased had committed suicide by hanging. It was also submitted in this context by learned Counsel for the applicant that according to para 11 of the affidavit accompanying the bail application, murder of deceased is alleged to have been committed by her brother and maternal cousin, but no F.I.R. was lodged by the applicant or any other accused against the brother and maternal cousin of deceased for committing her murder, which falsifies the defence version as contended in para 11 of aforesaid affidavit.

I have carefully gone through the entire case diary including post mortem report and other papers on record. The differences between "Hanging"and "Strangulation" are given at page 270 of Modi''s Medical Jurisprudence and Toxicology (Twenty Second Edition). In the case of hanging, ligature mark will always be oblique and in case of strangulation, the ligature mark will be horizontal. In present case as per post mortem report (Annexure-2), the ligature mark in the neck of deceased was horizontally placed, which was starting from middle of neck, extending 14 cm. to right, 1 cm. wide, at lower half of neck. On the basis of the findings recorded in the post mortem report, the doctors conducting post mortem examination have opined that the death of the deceased was caused due to asphyxia as a result of strangulation. It is true that as per post mortem report, the hyoid bone of the deceased was found intact, but merely on this basis it cannot be said that it is a case of hanging, because at Sl. No. 12 of the table aforesaid, it is only mentioned that in case of strangulation fracture of larynx and trachea and hyoid bone is often found. It is not mentioned in the Modi''s Medical Jurisprudence and Toxicology that fracture of hyoid bone is essential in all cases of strangulation. Moreover, in present case, according to para 11 of the affidavit accompanying the bail application, it was a case of homicidal death. Murder of deceased was committed by strangulation in the house of applicant. Therefore, having regard to all these facts, but without expressing any opinion on merit, in this heinous crime, the applicant does not deserve bail.

Although further proceedings of S.T. No. 43 of 2008, State v. Sobran Singh and others S.T. No. 43 of 2008, arising out of Case Crime No. 554 of 2007 of P.S. Sadar district Agra has been stayed by another Bench of this Court vide order dated 31.7.2008 passed in Transfer Application No. 545 of 2008, but in my opinion on this ground also, the applicant cannot be released on bail, because request may be made to the Bench concerned to expedite the hearing of transfer application.

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot be admitted to bail in this heinous crime, In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and others LXIII (2008) ACC 115 : 2008 (3) ACR 3216 (SC), in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under-trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail application is hereby rejected.

On vacation of stay order dated 31.7.2008, passed in T.A. No. 545 of 2008, the trial court will make sincere efforts to conclude the trial of the applicant and other accused persons within a period of six months, applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments.

Before parting with this order, I would like to point out that whatever observations have been made herein-above are for the purpose of disposal of this bail application only. The trial court would be at liberty to take its own view on all the matters independently without being prejudiced by any observations made by me in this order.

The office is directed to send a copy of this order within a week to the trial court concerned for necessary action.