Mohan alias Pappu vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this bail application u/s 439, Code of Criminal Procedure has been moved on behalf of the applicant Mohan alias Pappu, son of Bhuri Singh, who is facing trial in S.T. No. 29 of 2008, arising out of Case Crime No. 534 of 2007, under Sections 498A, 302 and 201, I.P.C. and Section 3/4, D.P. Act P.S. Etmaddaula, district Agra.

The applicant Mohan alias Pappu, is the husband of Smt. Sunita, who died within a period of seven years of her marriage, due to asphyxia as a result of smothering. Her dead body was found lying on 11.8.2007 at about 5.00 p.m. on the bank of Yamuna river, village Nagla Bihari within the limits period of P.S. Etmaddaula, district Agra. Information about the dead body was given at P.S. Etmaddaula by one Babloo. The said information was lodged in G.D. No. 50, on 11.8.2007 at 6.10 p.m. on the basis of that information the inquest on the dead body was conducted and post-mortem examination was also conducted on 15.8.2007. According to the post-mortem report (Annexure-3), ante-mortem injuries were found on the person of the deceased and cause of death was asphyxia as a result of ante-mortem smothering. Sri Bhim Sen, father of the deceased lodged an F.I.R. on 16.8.2007 at P.S. Etmaddaula (Agra), where a case under Sections 498A, 304B and 201, I.P.C. and Section 3/4, D.P. Act was registered at Case Crime No. 534 of 2007 against (1) Mohan alias Pappu (applicant herein), (2) Matre Lal, (3) Kali Charan, (4) Gautam Singh, (5) Bhuri Singh and (6) Vishna Devi.

The allegations made in the F.I.R., in brief, are that the marriage of the deceased had taken place about seven years ago with Pappu and dowry as per-capacity was given at the time of marriage, but accused persons began to cause harassment of the deceased making demand of dowry, due to which her father paid Rs. 15,000-20,000 to her in-laws, but they were not satisfied and making demand of motorcycle and Rs. 20,000 and they continue to cause her harassment. Further case of the prosecution is that on 14.8.2007 Gauri Shankar and Achal Singh went to the sasural of Sunita to bring her to maika and when they reached her sasural, they came to know that in-laws of Sunita after committing her murder had thrown her dead body in Yamuna river, which was found lying there. Gautam Singh informed his father Bhim Sen about this incident, on which he came to the sasural of his daughter and saw her dead body. After performing funeral of dead body of the deceased, the complainant had lodged the F.I.R.

I have heard lengthy arguments of Sri Dinesh Tiwari, advocate, appearing on behalf of the applicant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that the complainant Bhim Sen has been examined in trial Court as P.W. 1, in S.T. No. 29 of 2008, but he has not supported the case of the prosecution, and hence the applicant is entitled to be released on bail on this ground. For this submission, my attention has been drawn towards statement of Bhim Sen, which has been filed as Annexure-S.A. 1 to the supplementary-affidavit.

Next submission made by learned Counsel for the applicant is that the deceased Sunita was going to her maika all alone and when she was crossing the river, she fell down in the river, due to which she died, for which the applicant is not responsible, and hence no evidence is made out against him.

It was further submitted by learned Counsel for the applicant that the marriage of the deceased had taken place about seven years ago and the story of making demand of dowry during such a long period is false and concocted.

It was also submitted by learned Counsel that the applicant is languishing in jail since 14.9.2007 and hence on the basis of long incarceration in jail also, he was entitled to be released on bail, as due to delay in trial his fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application was vehemently opposed by A.G.A. contending that the deceased had not died due to drowning in the river and her murder was committed by smothering and since the applicant did not inform the police about committing the murder of deceased, hence in this heinous crime, the applicant should not be released on bail.

Next submission made by learned A.G.A. was that different ground for committing the murder of the deceased has been taken on behalf of the applicant in para 4 of the bail application, and hence on this ground also the applicant should not be released on bail.

It was also submitted by A.G.A. that the complainant Bhim Sen has also supported the case of prosecution in his examination-in-chief recorded on 4.2.2009 as P.W. 1 in S.T. No. 29 of 2009, but when he was cross-examined on 21.3.2009, he has retracted from his earlier statement, but this Court making assessment of the evidentiary value of the statement of this witness, should not enlarge the applicant on bail because any observation made by this Court about the statement of this witness serious prejudice will be caused at the time of trial. It was also submitted by A.G.A. in this context that there are many other witnesses also, yet to be examined in trial Court and hence merely on the basis of the examination of complainant Bhim Sen. the applicant should not be released on bail.

I have carefully gone through the entire material on record. The plea of committing suicide by the deceased had been taken in para 4 of the bail application, is prima facie false because according to the post-mortem report (Annexure-3), the cause of death was asphyxia as a result of smothering and ante-mortem injuries were also found at the lime of post-mortem examination on the person of deceased. The witness Bhim Sen also has supported the case of the prosecution in his examination-in-chief. Statements of many other witnesses were recorded during investigation, which have to be examined in trial Court. The deceased had died as a result of smothering, but the applicant has not furnished any explanation about committing the murder of deceased. Rather, false explanation has been given in para 4 of the bail application about committing suicide by the deceased. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, in this heinous crime of committing the murder of his wife, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicant cannot be released on bail. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. (LXIII) 2008 ACC 115 : 2008 (3) ACR 3216 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.

The trial Court concerned is directed to conclude the trial of the applicant and other accused persons within a period of six months making sincere efforts and applying the provisions of Section 309, Code of Criminal Procedure.

S.S.P., Agra is also directed to depute special messenger to procure the attendance of rest witnesses after obtaining their summons from the Court concerned and it must be ensured that witnesses are produced in aforesaid case without causing any delay.

Whatever observations have been made hereinabove about the cause of death of the deceased and other matters in this order are only for the purpose of disposal of this bail application and the trial Court would take its own view about merit of the case 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 and S.S.P., Agra for necessary action.