Uttarakhand High Court
BA3/37/2013 of Hitesh Agarwal Vs State Of Uttarakhand on 30 December 2013
COURT OF UTTARAKHAND AT NAINITAL Original Jurisdiction Dated: Nainital: the 30th day of December, 2013 3rd Bail Application No.37 of 2013 Order on the Bail Application: CRIMINAL SIDE Hitesh Agarwal S/o Shri Surendera Agarwal R/o Nilkanth Residency Loras B-1 Ist Floor No.204, Model Town West 9,
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IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL
Original Jurisdiction
Dated: Nainital: the 30[th] day of December, 2013 3[rd] Bail Application No.37 of 2013
Order on the Bail Application:
CRIMINAL SIDE
Hitesh Agarwal S/o Shri Surendera Agarwal R/o Nilkanth Residency Loras B-1 Ist Floor No.204, Model Town West 9, Ghaziabad U.P.
………Applicant
State of Uttarakhand
Versus
…… Opposite Party
Arising out of F.I.R. No.189 of 2011, Under Section 304-B I.P.C. and 3/4 Dowry Prohibition Act, registered with Police Station Rudrapur, District Udham Singh Nagar.
Hon’ble V.K. Bist, J.
Mr. Z.U. Siddqui, Advocate for the applicant.
Mr. Hari Om Bhakuni, Brief Holder for the State.
Counter affidavit filed in the Court today. Same is accepted on record.
Heard learned counsel for the parties.
This is third bail application moved by the applicant Hitesh Agarwal, who is in jail in connection with F.I.R. No.189 of 2011, Under Section 304-B
I.P.C. and 3/4 Dowry Prohibition Act, registered with Police Station Rudrapur, District Udham Singh Nagar. He has sought his release on bail.
First bail application of the applicant was rejected on 27.09.2012 on merit. Second bail application was dismissed for non-prosecution on 22.10.2013.
Learned counsel for the applicant submitted that the applicant has falsely been implicated in the present crime. He submitted that though in the Post Mortem Report, cause of death according to the doctor is Asphyxia due to anti mortem strangulation (Throttling), but other things mentioned in the Post Mortem Report do not support this finding. He relied upon the judgment of the Allahabad High Court in the matter of “Lal Singh Vs. The State” reported in AIR 1956 ALL 731, 1956 CriLJ 1385. Relevant paragraph of the judgment on which the learned counsel for the applicant placed reliance is being reproduced below:
“It is important at this stage to notice that no external signs, which normally appear in cases of death by strangulation or throttling, were present in this case. The face was not swollen; the tongue was not protruding; there was no frothy matter coming out either from the nostrils or from the mouth; the lips did not wear that particular hue which lips of persons dying of asphyxia wear; the finger-nails were not blue; and the eyes were not open.”
Learned counsel for the applicant submitted that identical situation is also present in the present case. He submitted that in the case in hand, in the Post Mortem Report, no swelling was found and no frothy matter was coming out either from the nostrils or from the mouth. Therefore, the Post Mortem Report, which shows that cause of death according to the doctor is Asphyxia due to anti mortem strangulation (Throttling), is incorrect. Learned counsel for the applicant then submitted that the applicant is in jail since 23.04.2011 and in fact, he is in jail for more than 2 years and 8 months and for the offences leveled against the applicant, the punishment is only three years. Therefore, the applicant deserves bail. He also submitted that the Final Report was filed in respect of sister-in-law of the deceased, and father-in-law of the deceased has already been granted bail. He submitted that no role has been assigned to the applicant in the F.I.R. and on the ground of parity applicant deserves bail.
I have considered the submission advanced by the learned counsel for the parties and have perused the papers available on record.
I have perused the Post Mortem Report, which shows that cause of death according to the doctor is Asphyxia due to anti mortem strangulation (Throttling). In the Post Mortem Report, three ante mortem injuries have been found on the person of the deceased i.e. contusion measuring 2 cm x 1 cm and another contusion measuring 2 cm x 2 cm present on middle and slightly right side of the neck and another one at right side of neck just below angle of mandible, multiple contusions measuring 2 cm x 2 cm to 1 cm x 1 cm present on middle of left side of neck and below angle of mandible of left side of neck, on further exploration of above wound, the sub-cutaneous hemorrhage present, Hematoma also present in between muscles of the neck.
Considering the submission advanced by the learned counsel for the parties, I do not find that this is a fit case to grant bail. Consequently, the third bail application of the applicant stands dismissed.
(V.K. Bist, J.)
Arpan 30.12.2013