The Allahabad High Court rejected a bail application observing that the evidence available at the time of hearing the bail application cannot be examined, only to be seen as to what is the role in the offence and whether the accused deserves to be released on bail or not.
A single-judge bench of Justice Krishan Pahal passed this order while hearing a Criminal Misc Bail Application filed by Anees.
The bail application has been filed by the applicant in Case under Sections 498-A, 323, 302 IPC and Section 3/4 of Dowry Prohibition Act, Police Station Loni, District Ghaziabad, with the prayer to enlarge him on bail.
As per prosecution story, the informant lodged an FIR at Police Station Loni, District Ghaziabad on 12.12.2018 alleging that he is a resident of town Kandhala, District Shamli, UP and he had married his sister to the applicant Anees as per Muslim customs about seven years before her death.
After the marriage, the applicant Anees and co-accused persons, namely, Naseem, Nafees and Smt Asgari are stated to have subjected the deceased to cruelty for demanding dowry and used to beat her up every now and then. It was learnt that the applicant had an affair with another girl as the sister of the informant and other family members of Anees had seen him in a compromising condition with the said girl. The said fact was brought to the knowledge of family members of the informant about two months before the date of incident. The applicant is stated to have confessed and had promised that said act shall not be repeated as such the sister of the informant had gone with the applicant. The deceased person was taken by the applicant to Loni and both were residing in Aksha Masjid, Prem Nagar, Loni.
On 10.12.2018 at about 10:40 p.m, a phone call was received by the informant stating that his sister had been set on fire by sprinkling kerosene on her by her in-laws.
The informant and his family members reached GTB Hospital, Delhi on 11.12.2018 at about 03:00 a.m. from Punjab. The deceased person had stated to family members that the applicant and his family members had been beating her for several days and kerosene was sprinkled on her by all the accused persons and she was set afire.
It is also stated in the FIR that there is a video recording of the statement of his sister at Police Chowki Loni.
The counsel for the applicant stated that the applicant has been falsely implicated in the case. The trial is going on and all four witnesses of fact have been examined.
The counsel stated that Nadeem is the informant and has not supported the prosecution story and he has been declared hostile by the public prosecutor and has been cross-examined by him as such.
The counsel stated that it has come up in the statement of Nadeem that when he reached the hospital he found his sister unconscious and she had not made any statement before them.
The counsel further stated that Ishrar has also followed suit and has not supported the prosecution story.
The counsel has also stated that Haqiqat is the brother-in-law of the informant and he has also not supported the prosecution story and has even denied any videographic recording of the statement of the deceased person.
Smt Fahmida is the mother of the deceased person and she has also not supported the prosecution story.
The counsel stated that all these witnesses have resiled from their earlier statements recorded by the Investigating Officer. The counsel said the signature of the witnesses has also been taken by the person conducting inquest proceedings on their statements. The said statements are not admissible in the law as they are hit by Section 162 CrPC.
The counsel stated that there is a dying declaration of the deceased person which was recorded by ASI at GTB Hospital.
The counsel further stated that no presumption under Section 113-B of Indian Evidence Act can be drawn in the case as the marriage of the applicant with the deceased person was solemnized in 2010 as such a period of more than seven years has passed till the date of offence. Even the charge-sheet has been filed under Sections 498-A, 323, 302 IPC and 3/4 of Dowry Prohibition Act.
The counsel stated the trial is moving at a snail’s pace and there is no likelihood of early conclusion of trial. The Assistant Sub-Inspector who recorded the dying declaration has not been examined by the Investigating Officer and has not even been produced in the court.
The counsel stated that the period of incarceration of the applicant is also to be considered as he is languishing in jail since 14.12.2018, i.e, more than four years.
Several other submissions have been made on behalf of the applicant to demonstrate the falsity of the allegations made against him. The circumstances which, as per counsel, led to the false implication of the applicant have also been touched upon at length. It is also argued that there is no criminal history of the applicant. In case, the applicant is released on bail, he will not misuse the liberty of bail.
Per contra, the AGA opposed the bail application on the ground that there is a memo attached with the case diary and has been proved by the Ishrar whereby it has been stated that there was a videographic recording of the statement of the deceased person.
AGA stated that it has nowhere been stated by the prosecution that the statement record by the ASI is dying declaration but has stated that said statement before ASI and even before treating doctors, namely, Dr Shahbaz Mansoori and Dr Alfaraz Mohd tantamount to dying declaration as they have been duly recorded by them during the course of their official duty.
The Court observed the only bone of contention is as to whether the statement of deceased to the ASI and the treating doctors pass the test of dying declaration or not. The victim was a young lady who had succumbed to burn injuries sustained at the time alleged in the First Information Report. This factum stands proved by the statements of the hostile witnesses and the Autopsy report.
The statement of the deceased is stated to have been recorded by the ASI which has been filed by the counsel for the applicant and has been disputed on the ground that there is overwriting in the date transcribed by its author.
The dying declaration is hearsay evidence. It is settled law that though a dying declaration is entitled to great weight, it is worthwhile to note that the accused has no power of cross-examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination.
From the perusal of both the statements aka “dying declarations” it transpires that the contents are almost the same although the ASI has recorded it in vernacular Hindi and the treating doctors have done so in English. There is nothing on record to suggest that the police or the treating doctors had any animosity with the applicant. The investigating officer has fairly exonerated the accused who were although named in FIR, but their names were not mentioned in the statements of the deceased person that tantamount to dying declaration. A presumption of fair action on the part of police and the treating doctors must arise here.
At the stage of adjudicating a bail application this court is not inclined to delve into the quality or quantity of evidence but to see whether the delinquent appears to have committed the crime and he is entitled for bail or not.
“After hearing counsel for the parties, going through the evidence on record and also taking into consideration the aforesaid judgments and the fact that a young lady has been set to fire by the applicant within the precincts of the place they both used to live, I do not find it a fit case for grant of bail to the applicant,” the Court further observed while rejecting the bail application.