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ANEES ALIAS BABU versus STATE OF U.P.

High Court of Judicature at Allahabad

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Anees Alias Babu v. State Of U.P. - CRIMINAL MISC. BAIL APPLICATION No. 16703 of 2005 [2006] RD-AH 5478 (8 March 2006)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No.27

Crl. Misc. Bail Application No. 16703 of 2005

Anees alias Babu  . . . .  .  .  .  .  . . .Vs.  . . . . .  . .  . . . State of U.P.

 ---

Hon'ble R.K.Rastogi,J.:

The applicant, Anees alias Babu  has applied for bail in  this case crime no. 01 of 2005 under sections 498-A, 304-B  I.P.C. and ¾ Dowry Prohibition Act of police station Hapur Dehat district Ghaziabad.

I have heard learned counsel for the applicant, Sri Kapil Tiwari, learned counsel for the complainant, and  the learned A.G.A. for the State.

The prosecution case starts with a F.I.R. lodged by Mohammad Yunus  at  police station Hapur Dehat  on 3.1.2005 at 8.50 P.M.  It was stated  therein that  marriage of his daughter Nasreen  had taken place  with  accused Anees alias Babu about 1 ½ years ago. Sufficient dowry was given at the time of marriage. Anees, his father Tunni, sisters Manno and Nasreen and brother Rahees were not satisfied  with the dowry and they were demanding a motor cycle  and cash and as he did not meet  their demand of dowry, the above named accused persons murdered her on 3.1.2005 by burning her. He received this information  from his sister  Amna and when he went to village Phulgarhi then he saw that the dead body of his daughter was lying in the Verandah of the house. She  also had a child of two months.

On the basis of the above report, the police registered a case against the accused persons, prepared  inquest report  of the dead body and sent it for postmortem. According to the postmortem, which was performed  on 5.1.2005, cause of death of  Nasreen  was ante mortem burn injuries.

The  applicant has alleged that he  is innocent and has been  falsely implicated in this case. His learned counsel has submitted that   all  other  co-accused  have already been granted bail by the Sessions Judge, but the bail application of the applicant, who is husband of the deceased, was rejected.  The learned counsel further submitted that actually there was no demand of dowry and the allegations of demand of dowry and cruelty are false. He further  contended that according to the F.I.R. Allegations, all the five accused  named in the F.I.R. had committed  murder of Nasreen  by burning her. He submitted that if  it had been a case of murder by five accused persons  there must have been some injuries upon the dead body, but a perusal of the inquest  report as well as the postmortem report reveals that there were no injuries on the  body except superficial burn injuries. He further contended that  at the time of  preparation of inquest report, Mohammad  Anwar, Saheed  Ahmad, Arshad Ali, Alla Rakhe  and Mohammad Ahmad  were present. Mohammad Anwar, who is real uncle of the deceased was nominated as Panch No.1. He further contended that Shaheed Ahmad and Arshad Ali are  Sarhu of the applicant and sons-in-law of of the informant and if there had been any demand of dowry and if  atrocities  had been committed upon the deceased, they would have disclosed this fact when their opinion  regarding cause of death was taken. In the column of Rai Panchan it has been mentioned  that all the Panchas  stated that death appeared  to have been caused  due to burn injuries and  for ascertainment of the real cause of death postmortem  of the dead body should be performed. He further contended that actually it was a case of suicide and since the deceased was not satisfied with her husband, who was a truck driver and who remained outside  the  house  for about 20 days in a month and who was not in a position to give company to the deceased,  she had committed suicide, and so bail should  be granted to the applicant.

Sri Kapil Tiwari from the side of the complainant and the learned A.G.A. appearing for the State have opposed the bail application. The learned counsel for the complainant  submitted that in this case it was stated in the F.I.R. lodged on 3.1.2005 that  the accused  were committing atrocities upon the  deceased  in connection with the demand of dowry and so it is immaterial that this fact was not reiterated in the inquest report which was prepared on 4.1.2005. He further submitted that there is evidence of the informant and other witnesses to this effect that the accused were making demand of dowry and were committing atrocities upon the deceased. He further contended that  allegation of the applicant that  he being a truck driver   had to remain outside  the house for more than 15 to 20  days in a month, and so the deceased was not  satisfied with him and so she committed suicide is false.  He submitted that this grievance could be there just after the marriage, but in the present case the deceased  had given birth to a child who was aged about two months at the time of her death. He contended that a mother having a child of tender age of two months in her lap, who is totally dependent upon her, would never have committed suicide, even if she was dis-satisfied with her husband. He pointed out that according to the postmortem report smell of kerosene oil was coming from the  entire  body of the deceased. He  submitted that since theory of suicide  is falsified taking into consideration  the presence of  a child of  two months only, it is a clear cut case of murder by burning  after pouring kerosene oil upon the body of the deceased. He further submitted that it is also not a case of accidental burning  because in that case  smell of kerosene oil  could not come  from the entire body. He further submitted that  the applicant is husband of the deceased and so he cannot escape  his liability  when she had died  an unnatural death within a period of less than two years from the date of marriage.

The learned counsel for the applicant further  submitted that the deceased  had never complained  to her parents  that the accused were making demand of dowry, nor any complaint was  filed  in any court  in this regard, nor there is anything to show that demand of dowry was made soon before  the death and so in view of  the rulings of Hon'ble Supreme Court on the point,  bail should be granted to the applicant. In reply the learned  counsel for the opposite party contended that the informant has stated in his statement  made under section 161 Cr.P.C. that whenever his daughter came to his house, she told him  and other family members about the demand of dowry and  atrocities committed upon her;  and besides the informant, other witnesses have also stated in their statements under section 161 Cr.P.C. about this demand as told by the deceased  to them. He further submitted that it is not necessary to lodge a complaint in  court in respect of the  demand  of dowry and no adverse inference can be drawn against the prosecution on the ground that no such complaint  had been filed. He further submitted that in this case  death of Nasreen  had taken place within a period  of 1 ½ years  from the date of marriage ,  and it had come in the statements of the informant and other witnesses that when ever Nasreen came to the house of her parents, she told them about the demand of dowry made by the accused  and atrocities being committed upon her,  and taking this short span of 1 ½ years into account, it cannot be said that there was  a long gap between the incidents of demand of dowry and  death of the deceased.

Without expressing any opinion on the merits of the case but taking into  consideration  the facts and circumstances pointed out before me, I am of the view that the applicant does not deserve  to be bailed out. This bail application is, therefore, rejected.

However, I direct the trial court to  complete the trial of the case   within a period of six months from the date of receipt of certified copy of this order.  If the trial is not completed within this period by the trial court without any fault of the accused, the applicant  shall be entitled  to move fresh bail application.

Dated:8.3.2006

RPP.


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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