Shambhu Prasad Dubey vs State of U.P.

Vijay Kumar Verma, J.—Prayer for bail in this bail application has been made on behalf of the applicant Sambhu Prasad Dubey, who is facing trial in S.T. No. 204 of 2007 arising out of Case Crime No. 113 of 2007 u/s 302, I.P.C., P. S. Hallia, district Mirzapur.

An F.I.R. was lodged on 2.6.2007 by Shiv Chandra Dubey son of Lalmani Dubey at P. S. Hallia (Mirzapur), where a case u/s 307, I.P.C was registered at Case Crime No. 113 of 2007 against Shambhu Prasad Dubey (applicant herein). The allegations made in the F.I.R., in brief, are that on 2.6.2007 at about 6:00 a.m., the accused Shambhu Prasad Dubey son of Lalmani Dubey after pouring kerosene oil on Smt. Vandana Tiwari, (chachiya saas of the complainant), set her on fire, due to which she was seriously injured. This incident was witnessed by the children of Smt. Vandana Tiwari and many neighbours, who came on hearing the cry of children and extinguished the fire. Smt. Vandana Tiwari in injured condition was admitted in the hospital, where she succumbed to the injuries. Hence, the case was converted u/s 302, I.P.C.

I have heard lengthy arguments of Sri A. B. L. Gaur, learned senior advocate assisted by Sri R. D. Misra, appearing for the applicant and A.G.A. for the State.

The first and foremost submission made by learned Counsel for the applicant was that no reliance can be placed on the dying declaration of deceased, as certificate of doctor about mental fitness of deceased was not obtained by the Magistrate concerned before recording the dying declaration. For this submission reliance has been placed on Satish Kumar v. State of Punjab XLIV 2003 ACC 356: 2003 (2) ACR 1248 (SC) ; Chacko v. State of Kerala 2003 (1) JIC 38: 2003 (2) ACR 1743 (SC) and Amol Singh Vs. State of M.P.,

Regarding the dying declaration it was further submitted by learned Counsel that deceased had deep burn injuries, due to which she could not speak.

About the statement of Kumari Chanda, daughter of the deceased, it was submitted by learned Counsel that she was under the control of village Pradhan and due to his undue influence, she has given statement against the accused to the Investigating Officer. For this submission, my attention was drawn towards the statement (Annexure-RA1) of Shiv Chandra Dubey (complainant), who has been examined in S. T. No. 204 of 2007 in the Court of Special Judge (E. C. Act), Mirzapur. Drawing my attention towards this statement, it was also submitted by learned Counsel that F.I.R. of this case was lodged by the complainant on the dictation of village Pradhan and hence, the F.I.R. does not carry any weight. It was further submitted by learned Counsel that from the statement of Shiv Chandra Dubey, this fact is also borne out that the deceased Vandana Tiwari was unconscious and she was not able to speak.

Next submission made by learned Counsel for the applicant was that after the death of the husband of Vandana Tiwari, the applicant Shambhu Prasad Dubey was keeping her as a wife and since at the fateful time, she was having talks with some other person, for which the applicant had objected, but she did not pay any heed, hence in grave and sudden provocation, the incident occurred and hence the offence punishable u/s 302, I.P.C. would not be made out in present case, because there was no intention or motive on the part of the applicant to commit the murder of deceased.

Last submission made by learned Counsel is that the applicant is languishing in jail since 5.6.2007 and hence, on the basis of long detention period in jail, he is entitled to be released on bail, because due to delay in trial, his Fundamental Right of speedy trial envisaged under Article 21 of the Constitution is being infringed.

The bail application was opposed by learned A.G.A. contending that in addition to the dying declaration of deceased, there is eye-witness account of the witnesses Km. Chanda, Krishna Dutt Tiwari and Smt. Jagrani Devi to establish the complicity of the applicant in the incident of setting the deceased on fire after pouring kerosene oil on her.

I have carefully gone through the entire case diary and other material on record. If for the sake of argument, on the basis of aforesaid submissions made by learned Counsel for the applicant, the dying declaration of the deceased is not taken into consideration at this stage, even then there is eye-witness account of three witnesses, namely Km. Chanda, Krishna Dutt Tiwari and Smt. Jagrani to show that the applicant after pouring kerosene oil on the deceased Smt. Vandana had set her on fire, due to which she sustained serious injuries and subsequently died in the hospital during treatment. Therefore, keeping in view the statements of these witnesses and having regard to over-all facts and circumstances of the case, without expressing any opinion on the merit, in this heinous crime 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 heinous crime. 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 (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 of the applicant Shambhu Prasad Dubey is hereby rejected.

The trial court is directed to conclude the trial of the applicant within a period of six months applying the provisions of Section 309, Cr. P.C. and avoiding unnecessary adjournments.

S.S.P., Mirzapur also is 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 rest witnesses in S. T. No. 204 of 2007 are produced in Court 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., Mirzapur for necessary action.