Court No. - 46 Case :- CRIMINAL APPEAL No. - 2424 of 2009 Petitioner :- Smt. Vimla Respondent :- State Of U.P. Petitioner Counsel :- Atul Kumar Tiwari,Vinay Saran Respondent Counsel :- Govt. Advocate Hon'ble Sheo Kumar Singh,J.
Hon’ble Shyam Shankar Tiwari,J.
Heard Sri Vinay Saran, learned Advocate assisted by his
colleage who appeared to press bail application moved on
behalf of Smt. Vimla and learned Additional Government
Advocate for the State.
Applicant above named was prosecuted for the offence
punishable under Sections 498-A, 304-B, 323, 506 I.P.C.
and 3/4 Dowry Prohibition Act but ultimately conviction is
under Section 302 I.P.C. and thus she is to serve out the
sentence so provided in the judgment.
Submission is that there were seven accused who were
charged and tried by judgment in question and learned Trial
Judge after disbelieving the prosecution version in respect to
the various sections under which accused persons were
proceeded acquitted six of the co-accused which included
father-in-law and Mama etc. and the applicant who is
mother-in-law has been convicted not under various sections
so proceeded but under Section 302 I.P.C.
Submission is that it is a case where neither any motive nor
any malice on the part of the appellant and other co-accused
is proved rather the charge in respect to demand of dowry
and various types of torture was also disbelieved.
Submission is that it is case where it has been
found/believed by the learned Trial Judge that the father-in-
law took the lady to the hospital and got her treatment and in
that connection he also received burn injuries and thus
conviction is based by believing part of the dying declaration
although part is disbelieved.
Submission is that in the medical examination report there is
no smell of any kerosene oil and nothing was found at the
spot and shown. Role of catching hold, putting kerosene oil
and burn by match stick all has been assigned to the
appellant which may not be humanly possible by one lady
only.
Submission is that the evidence on which conviction is
based can be said to be important but that is to be certainly
examined with caution/with all kinds of scrutiny in respect to
which decision given by the Apex Court in case of Kans Raj
Vs. State of Punjab, reported in 2000 Cri.L.J.2993 was also
cited as noted by the learned Trial Judge.
In support of the submission another decision given by the
Apex Court in case of State of Rajasthan Vs. Prithviraj,
reported in 1995 SCC(Suppl. 3), 410 was also placed.
Learned Additional Government Advocate to oppose the
aforesaid submits that although appellant and other six co-
accused were charged under various sections in which they
are acquitted but as the dying declaration is there in which
something has been stated only against the appellant, if
learned Trial Judge convicted the appellant then it is not a fit
case in which she is to be enlarged on bail.
There is no dispute about the fact that seven accused were
charged/tried by the judgment in question. The husband
having been found to be juvenile his trial has been
separated. Six of the co-accused who were tried by the
judgment in question were finally acquitted and charges
under all the sections so mentioned in the judgment were
not found to be proved against them.
Charges against the appellant also under various sections
so mentioned in the judgment was not found to be proved.
Learned Trial Judge believed the defence version in respect
to taking of the lady to the hospital by the father-in-law who
received certain burn injuries.
Argument of there being no smell of kerosene oil and
nothing was found on the spot according to the site plan is
also to be taken note at this stage.
Improbability in respect to commission of offence only by the
applicant without help of anybody is also to be taken note at
this stage.
Applicant is said to be aged about 55 years of age and she
was on bail during trial which lasted for about seven years
and the claim is of not its misuse and the appeal is not so
old and thus it will take long time in its disposal, thus the
appellant is entitled to be enlarged on bail.
On the facts, and totality of the circumstances this court is of
the view that the appellant is entitled to be enlarged on bail.
Accordingly, let the appellant Smt. Vimla involved in S.T.No.
321 of 2002, be enlarged on bail on her furnishing a
personal bond and two sureties each in the like amount to
the satisfaction of the Court concerned.
Realization of fine in respect to above appellant to the extent
of fifty percent shall remain stayed. Balance amount of fine
shall be deposited forthwith. The release order shall be sent
after deposit of fine.
Order Date :- 12.1.2010
M.A.A.