ATUL KUMAR Vs. STATE OF U.P.

JUDGEMENT

(1.) Counter affidavit, rejoinder affidavit and supplementary affidavit filed today are taken on record.

(2.) Submission of the counsel for the applicant is that though the applicant is the husband and normally strict view in order to fix up his liability in the alleged case of dowry death is taken against him but in the peculiar facts and circumstances of the case there are strong circumstances to indicate that it was a case of accidental burn and nobody was responsible for causing burn injuries to the deceased. Counsel in this regard has drawn the attention of the Court to the death summary of the deceased of Safdarjung Hospital, New Delhi indicating the observation in the same that the deceased was admitted in the hospital as an accidental burn case and even at that stage, the alleged history as was given was that while cooking food, she caught fire. Attention was also drawn to the statement of the deceased given to the investigating officer under Sec. 161 of Crimial P.C. which indicates that the husband was called telephonically by sister-in-law after the accident took place and then it was the husband, who rushed her to Yashoda Hospital, Ghaziabad. But because of absence of burn ward there, she was then taken to Safdarjung Hospital, New Delhi. Counsel has drawn the attention of the Court to the two statements of the deceased given to the investigating officer one that was taken and recorded through video clipping and was copied down in the case diary and another statement which was subsequently taken directly. Submission is that both these statements are very elaborate and they completely exonerate the applicant from having any hand in the alleged crime. How the deceased caught fire was explained by her and even on being specifically inquired by the investigating officer, she simply declared her husband as innocent. Further submission is that the statements given by the deceased are admissible under Sec. 32 of the Indian Evidence Act and are admissible as dying declarations even though they were recorded by the investigating officer and the authenticity of the same is confirmed by the video clipping of the same which was recorded by the investigating officer. It was also pointed out that the incident had taken place on 24.5.2015 and the deceased struggled for her life for many days and despite the best treatment that was made available to her in Sufdarjung Hospital, New Delhi she eventually succumbed to injuries. Submission is that Sufdarjung Hospital, New Delhi is known for its expertise in treatment of burn cases and from all over the country people go there to get treatment of burns which is available there. Argument is that post incident conduct of the applicant is compatible only with the innocence of the accused and not with his guilt. Submission is that conduct of the applicant in providing her medical succour immediately and allowing the deceased to speak out before the authorities are also strong circumstances which are pointers towards the applicant's innocence and are completely inconsistent with the charge that have been levelled against him. There was no reason for the applicant to take the trouble of rushing the deceased to various hospitals and undertaking the risk being divulged as an accused by the wife. Ordinarily, according to the counsel, this is not the way how a guilty accused behaves and conducts himself. This was also not the case, in which the deceased was unconscious or was not in a position to speak out and where the prosecution may plead that because the accused knew that the deceased was not in position to tell anything to anyone so she was taken to the hospital only to create an alibi. The deceased survived for about a week after the incident and then died in hospital. Contention is that the allegations made against the applicant with regard to demand of dowry etc. are all fake. Much emphasis was laid by the counsel on the period of detention and it has been pointed out that the applicant has spent more than a year in jail and he is behind the bars since 10.6.2015 and that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that he is ready to cooperate with the process of law and shall faithfully make himself available before the court whenever required.

(3.) Learned A.G.A. and the informant's counsel have opposed the prayer for bail and have submitted that though the deceased survived for a few days after the incident but the investigating officer did not make adequate efforts to get her statement recorded by a Magistrate which would have been much more authentic version then the version recorded by himself and it should be presumed that she was forced by her in-laws and the applicant to give favourable statements before the investigating officer and, therefore, the same does not carry much weight.