Point of Law: If there is no possibility to conclude the trial in near future and the accused applicant is in jail for a substantial long period then a period of incarceration may be considered as a fresh ground.

JUDGMENT :

1. Heard Sri Arun Sinha, learned counsel for the applicant and Sri Balkeshwar Srivastava, learned Additional Government Advocate for the State.

2. This is the second bail application as the first bail application bearing Bail Case No.7160 of 2018 (Anokhi Lal vs. State of U.P.) has been rejected by Hon'ble Anant Kumar, J. (since retired) on 23.04.2019.

3. While rejecting the first bail application, the Hon'ble Court was pleased to observe as under :-

"However, at this stage, learned counsel for the applicant states that a direction may be given to the trial court for expeditious disposal of the trial. Accordingly, trial court is directed to expedite the trial and make an endeavour to conclude the trial, within a period of five months."

4. Sri Sinha has submitted that despite the specific direction of this Court vide order dated 23.04.2019 to conclude the trial within a period of five months, about three years period have passed but the examination of PW-2 has not been concluded inasmuch as such prosecution witness is a fact witness, who is not co-operating with the trial proceedings.

5. Sri Sinha has filed certified copy of orders of trial court for the last one year, the same are taken on record. Those certified copies shall be kept properly with this paper-book.

6. Sri Sinha has submitted that the present applicant is languishing in jail since 15.04.2018 in Case Crime No.36 of 2018, under Sections 498-A & 304-B I.P.C. and Section 3/4 of Dowry Prohibition Act, Police Station-Khargupur, District-Gonda. He has further submitted that in the impugned First Information Report (in short F.I.R.), the entire family of the in-laws of the victim has been implicated. The present applicant is not a direct family member of the in-laws of the victim as he is a cousin brother of husband of the victim and such fact has been shown in the pleadings as well as in the family register which has been annexed in the bail application.

7. Sri Sinha has further submitted that in the dying declaration, the allegation has been levelled against the mother-in-law (Smt. Munni Devi) and the present applicant. However, as per statement of the family members of the victim the main allegation has been levelled against the mother-in-law (Smt. Munni Devi).

8. As per the prosecution story, the victim had been brought to the hospital by her husband (Vinay Kumar Awasthi), and the victim died in the hospital. As per the family members of the victim, all the family members including the husband of the victim were involved.

9. Attention has been drawn by learned counsel for the applicant towards Annexure No.5 of the bail application, which is a bail order of mother-in-law (Smt. Munni Devi) dated 05.07.2019 passed by this Court in Bail Case No.2035 of 2019 (Smt. Munni Devi vs. State of U.P.) whereby this Court granted bail to the mother-in-law (Smt. Munni Devi).

10. Further attention has been drawn by learned counsel for the applicant towards Annexure No.6 of the bail application, which is a bail order of the husband of the victim dated 20.02.2019 passed by this Court in Bail Case No.6236 of 2018 (Vinay Kumar Awasthi vs. State of U.P.).

11. Sri Sinha has submitted that if the allegations of the family members of the victim are considered on its face value, then all the family members were involved but the mother-in-law (Smt. Munni Devi) and the husband (Vinay Kumar Awasthi) have been granted bail. Further, if dying declaration is considered on its face value, then despite having similar allegations the mother-in-law (Smt. Munni Devi) has been granted bail. Besides in various statements of family members of the victim the main culprit was the mother-in-law (Smt. Munni Devi).

12. Sri Sinha has submitted that however all the aforesaid arguments were available at the time of rejection of first bail application of the present applicant but since the mother-in-law (Smt. Munni Devi) has been granted bail subsequent to the rejection of the bail application of the present applican