Vikas alias Babloo vs State of U.P.

Kumar Verma, J.—Heard Sri Sandeep Kumar Dubey, advocate, holding brief of Sri Gopal Misra counsel for the applicant, Sri Anil Mullick, advocate appearing for the complainant and A.G.A. for the State.

The applicant Vikas alias Babloo is the husband of Smt. Seema, who died within 7 years of her marriage. Her marriage with the applicant had taken place in March, 2003 and she died on 2.4.2007 in the house of the applicant. An F.I.R. was lodged by Raj Pal, father of the deceased, on 2.4.2007 at P.S. Saradhana (Meerut), where a case u/s 498A/304B, I.P.C. and Section 3/4 of D. P. Act was registered against Vikas alias Babloo (applicant herein), Prakashi (mother-in-law), Kunwarpal (father-in-law) and Km. Komal (nanad). The allegations made in the F.I.R., in brief, are that after marriage of the deceased with the applicant, she was being harassed by the accused persons making demand of dowry and when their demand was not fulfilled, they committed her murder on 2.4.2007 by throttling.

The first and foremost submission made by learned Counsel for the applicant is that as per statements of the witnesses the main accused Kunwarpal, who had pressed the neck of deceased, has been granted bail by another Bench of this Court vide order dated 29.1.2008 passed in Bail Application No. 29089 of 2007 and hence, on the basis of principle of parity, the applicant deserve bail.

Next submission made by learned Counsel for the applicant is that the deceased had committed suicide by hanging, for which the applicant cannot be held responsible, as he did not abet her to commit suicide.

It is also submitted by learned Counsel that the applicant is languishing in jail since 26.2.2008 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 violated.

Bail application has been opposed by learned A.G.A. contending that the applicant also has actively participated in the commission of murder of the deceased and hence, in this heinous crime, he should not be released on bail.

I have carefully gone through the entire material on record. The post-mortem examination of the dead body of the deceased was conducted on 3.4.2007. Annexure-3 is the copy of post-mortem report, which shows that certain ante-mortem injuries were found on the person of deceased at the time of post-mortem examination. The doctors conducting post-mortem examination have opined that the cause of death was asphyixia due to throttling. There is sufficient prima facie evidence to show that the applicant Vikas alias Babloo also had actively participated in the incident of committing the murder of deceased. As per statement of witnesses, the applicant was sitting on the chest of the deceased and was pressing her hands. The defence version, as contained in para 19 of the affidavit accompanying the bail application, is that the deceased had committed suicide by hanging, whereas according to the post-mortem report, the deceased had died due to asphyxia as a result of throttling and not by handing. As mentioned hereinabove, some ante-mortem injuries were found on the person of deceased at the time of post-mortem examination. Therefore, having regard to all these facts, but without expressing any opinion on merit, in this heinous crime, the applicant does not deserve bail.

On the ground of principles of parity also, the applicant cannot be released on bail, as parity is not sole ground for bail.

In my considered opinion, on the basis of 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 LCIII 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.

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., Meerut also is directed to depute special messenger to procure the attendance of the witnesses after obtaining their summons from the trial court concerned and it must be ensured that the witnesses are produced in the session trial arising out of Case Crime No. 664 of 2007 of P.S. Sardhauna 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., Meerut for necessary action.