Shish Kumar vs State of U.P.

Vijay Kumar Verma, J.—A.G.A. has filed counter-affidavit, which is taken on record.

Heard Sri P. K. Sharma, holding brief of Sri S. K. Tripathi, learned Counsel for the applicant and A.G.A. for the State.

The applicant Shish Kumar, is the husband of deceased Smt. Kanti Devi, whose murder was committed within a period of seven years of her marriage in the house of applicant in the intervening night of 27/28.6.2008. Murder of son of the deceased was also committed. Shri Satish Kumar Pal (father of deceased Kanti Devi) lodged an F.I.R. on 28.6.2008 at P. S. Kannauj district Kannauj, where a case under Sections 498A, 304B, 302, I.P.C. and 3/4, D.P. was registered at Case Crime No. 954 of 2008 against Shish Kumar (applicant herein), Sant Ram, Girand Singh and mother of Shish Kumar. The allegations made in the F.I.R., in brief, are that the accused persons were causing harassment of the deceased making demand of dowry and when their demand was not fulfilled, they committed her murder alongwith her son Vikas.

The post-mortem reports of Kanti Devi and her son Vikas, filed with Annexure-4, show that cause of death was asphyxia as a result of strangulation.

The main submission made by learned Counsel is that there was no motive for the applicant for committing the murder of his wife and son and some unknown persons appeared to have committed their murder.

Next submission made by learned Counsel for the applicant is that no demand of dowry was made from the deceased and allegation of demand of dowry is false and concocted.

Further, submission made by learned Counsel is that the co-accused father-in-law, mother-in-law and Jeth of the deceased have been granted bail by the lower court and hence on the basis of the principle of parity, the applicant also deserves bail.

It is also submitted that the applicant is languishing in jail for more than one year and hence on the basis of long incarceration in jail, he is 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 has been opposed by learned A.G.A. contending that the applicant not only committed the murder of his wife, but he did not spare his son also and in this heinous crime, he should not be granted bail.

I have carefully considered the submissions of learned Counsel for the applicant and A.G.A. It is not disputed that murder of deceased Kanti Devi and her son Vikas was committed in the house of the applicant. In the affidavit accompanying the bail application, the applicant has not furnished any explanation as to how the murder of both the deceased was committed, whereas in view of the provisions of Section 106, Evidence Act, the applicant is required to furnish explanation as to how the murder of his wife and son was committed in his house. Therefore, in my opinion, in the absence of any satisfactory explanation about committing the murder of the wife and son of the applicant in his house, in this heinous crime he does not deserve bail.

On the ground of parity also, the applicant cannot be released on bail, because parity is not the sole ground for bail, as held by this Court in Shahanwaz alias Shanu v. State of U. P. LXVI 2009 ACC 199.

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 others LXIII 2008 ACC 115: 2008 (3) ACR 3216 (SC), in which the High 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 undertrial 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, Cr. P.C.

S.S.P. Kannauj 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 witnesses are produced in the session trial arising out of Case Crime No. 954 of 2008 of P. S. Kannauj 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., Kannauj for necessary action.