Satyavir and Another 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 made on behalf of applicants Satyavir and Jagdish in Case Crime No. 84 of 2008, under Sections 326, 323, 304 and 354, I.P.C., P.S. Aunchha, district Mainpuri.

An F.I.R. was lodged by Pratap Singh, son of Liladhar, resident of Nagla Fairbi, on 1.3.2008 at P.S. Aunchha, district Mainpuri, where a case under Sections 354, 326 and 323, I.P.C. was registered at Case Crime No. 84 of 2008 against (1) Jitendra, (2) Satyavir, (3) Jagdish and (4) Abhilakh. The allegations made in the F.I.R. (Annexure-1), in brief, are that Km. Renu, cousin sister of the complainant Pratap Singh was enticed away by Abhilakh about 6-7 months ago, report of which was lodged at P.S. Aunchha. The complainant was the witness of that case, due to which Abhilakh Singh and his companions Jitendra, Satyavir and Jagdish were having enmity with him. It is alleged that on 28.2.2008 at about 10 p.m. Smt. Sarla wife of the complainant had gone to attend natural call in the field. The accused Jitendra, Satyavir, Jagdish and Abhilakh came there in the field and after catching hold her, they made an attempt to outrage her modesty, for which she resisted. It is also alleged that on remaining unsuccessful in molesting Smt. Sarla, accused Jitendra poured kerosene oil on her and Abhilakh Singh set her on fire, due to which she began to cry, on which many persons of village reached on the place of incident and carried Smt. Sarla in injured condition to the hospital. On getting information, complainant Pratap Singh came from Delhi and after making enquiry from his wife, lodged the F.I.R. Further case of the prosecution is that due to the injuries sustained in the said incident, the deceased died during treatment in the hospital. Hence, the case was converted u/s 304, I.P.C.

According to post-mortem report (Annexure-2), burn injuries were found on the person of deceased at the time of post mortem examination and she died due to septicaemic shock as a result of ante-mortem burn injuries.

I have heard arguments at length of Shri V.P. Srivastava, learned senior counsel assisted by Shri I.B. Singh, advocate appearing for the applicants and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicants was that the deceased had committed suicide by setting herself on fire in the field, as she had carried kerosene oil in the lota, and hence the applicants are entitled to be released on bail, because they are not responsible for committing suicide by the deceased. For this submission, my attention has been drawn towards the statements of witnesses Smt. Meena Devi (Annexure-8), Rati Ram (Annexure-9) and Smt. Kutla Devi (Annexure-10).

Regarding the dying declaration (Annexure-12) of the deceased, it was submitted by learned Counsel for the applicants that there are material contradictions in the dying declaration and F.I.R. version and hence on this ground, it is not safe to place reliance on the dying declaration of the deceased. The contention of the learned Counsel in this context was that in the F.I.R., role of setting the deceased on fire was attributed to co-accused Jitendra and Abhilakh Singh and role of catching hold her for the purpose of outraging her modesty was only attributed to the applicants Satyavir and Jagdish but in the dying declaration (Annexure-12), role of setting her on fire has been attributed to the applicants. It was also submitted by learned Counsel for the applicants in this context that final report has been submitted against co-accused Satyavir and Jitendra and since the role of setting the deceased on fire was not attributed to the applicants in the F.I.R, hence both the applicants deserve bail on this ground.

It was further submitted by learned Counsel for the applicants that the deceased had committed suicide by pouring kerosene oil and setting herself on fire, as there is evidence in the case diary to show that when the witnesses had reached on the place of incident, smell of kerosene oil was coming from lota.

It was also submitted by learned Counsel that both the applicants are languishing in jail since 7.5.2008 and hence on the basis of long incarceration in jail, they are entitled to be released on bail, as due to delay in trial their fundamental right of speedy trial envisaged under Article 21 of the Constitution is being violated.

The bail application was vehemently opposed by learned A.G.A. contending that specific role of setting the deceased on fire has been attributed to the applicants Satyavir and Jagdish in the oral as well as written dying declaration of decease and hence in this heinous crime of making attempt to molest the deceased and committing her murder by setting her on fire, the applicants should not be released on bail.

On the matter of committing suicide by the deceased, it was submitted by learned A.G.A. that the deceased could commit suicide inside the house and there was no need to carry kerosene oil in lota to commit suicide in the field.

I have given my thoughtful consideration to the submissions made by learned Counsel for parties and carefully gone through the entire case diary and other material on record. From the statement (Annexure-4) of Smt. Leelawati, (mother-in-law of the deceased), statement (Annexure-5) of Jiledar (Jeth of deceased), statement (Annexure-6) of Shishupal and statement (Annexure-7) of Siyaram, this fact is borne out that when these witnesses had reached on the place of incident on hearing the shrieks of deceased, she had told them that Satyavir and Jagdish (both applicants herein) had set her on fire and she had identified them in the light of small torch. From the statements of these witnesses, this fact is also borne out that the deceased had told them that the accused persons had poured kerosene oil in lota also. The dying declaration (Annexure-12) of deceased Smt. Sarla was recorded by Tehsildar, Sadar, Mainpuri on 29.2.2008. Certified copy of the dying declaration was also produced by learned Counsel for the applicants. In her written dying declaration (Annexure-12), specific role of pouring kerosene oil on the deceased and setting her on fire has been attributed to the applicants Jagdish and Satyavir. Therefore, having taken the oral as well as aforesaid written dying declaration of deceased Smt. Sarla into consideration, but without expressing any opinion about merit of the case, in this heinous crime of making attempt to molest the deceased and committing her murder by setting her on fire in well planned manner, the applicants do not deserve bail.

In my considered opinion, on the basis of long incarceration in jail also, the applicants 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 have committed offence, they have 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 applicants within a period of six months making sincere efforts and applying the provisions of Section 309, Code of Criminal Procedure.

S.S.P., Mainpuri is also directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the Court concerned and it must be ensured that all the witnesses are produced in the sessions trial arising out of Case Crime No. 84 of 2008 of P.S. Aunchha (Mainpuri) without causing any delay.

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