AMAR SARAN, RAMESH SINHA, JJ. - (1.) HEARD Sri Dilip Kumar, learned Counsel for the appellant, learned counsel appearing for the complainant and the learned AGA.
(2.) A prayer for Bail has been made in this criminal appeal which has been filed against a judgment and order dated 26.2.2011 passed by the Sessions Judge, Au- ratya in Sessions Trial No. 50 of 2007 whereby the appellant has been convicted and sentenced to undergo life imprisonment and a fine of Rs.10,000/- with default stipulation of 1 year, for the offence under section 302 read with section 34 I.P.C. A First Information Report was registered on 3-11-2006 at 6,30 a.m. against the appellant by PW-2 Ram Autar, father of the deceased Alok Kumar at police station Achhalda alleging that his son Alok Kumar aged about 26 years was running a ready- made clothes shop in Achhalda. On 2-11- 2006 at about 7.00 p.m. when the deceased was crossing the house of PW-1 Kanhaiya Lal, then the appellant Smt. Archana Shukla wife of Navin Kumar, who resided in the said house as a tenant, invited the deceased to her room. At 11.30 p.m. Kallu, Kishan and Mahendra Singh who were also residents of the said house reached the informant's house in Mohamdabad and told him that the condition of his son was serious. He immediatey left for Achhalda and arrived at the room of the appellant where he saw the deceased lying on the floor in a dead condition in his underwear and vest. He expressed suspicion against Smt. Archana of having committed the murder by pressing the neck of the deceased by herself or with the aid of some accomplice. Learned Counsel for the appellant argued that no documentary evidence by way of rent receipts, tenancy note etc. have been produced by P.W. 1 Kanhaiya Lal, house owner for showing that Smt. Ar- chana Shukla used to reside in the upper portion of the house. There was no reason for the appellant to reside in the said house, in preference to Tahraijpur or Mohammad- abad because she belonged to Mohamdabad which was six kilometres away and she was working as a Shiksha Mitra at Village Tahrajpur which was one kilometer away from Mohamdabad. Her husband was in service in Kanpur and she had two children who were residing with her inlaws at Mohammadabad. It was further argued that the inquest report does not mention that the deceased was found in the room in the tenancy of the appellant. It was also urged that the deceased may have been residing in the said room. It had wrongly been mentioned that the deceased was seriously ill when Kallu, Mahendra Singh and other persons went to Mohamdabad to give information regarding the murder of the deceased in the appellant's room at Achhalda. He further argued that the deceased may have been murdered by the other tenants or inmates of the house and the body may have been thrown into the appellant's room,
(3.) IT is also argued that PW-1 Kanhaiya Lal and PW-2 Ram Autar have falsely stated that Archana was present at the time of incident and she was arrested on same day and was taken to the police station, as PW-6, Sobaran Singh, Investigating Officer, has stated that Archana was arrested on 24.11.2006, and the fact of her being arrested at the spot was also not mentioned by the informant in this FIR or in his statement under section 161 Cr.P.C. The FIR which was lodged in the morning of 3.11.2006 at 6.30 a.m. was delayed as admittedly the informant was given information of the incident in his home at Mohammadabad at 11.30 p.m. on 2.11.06. Some discrepancies as to whether the report was lodged at 1.30 a.m. in the night of 2/3-11- 2006 or at 6.30 a.m. on 3.11.2006 have also been raised. The reply of the prosecution to these contentions was that there was no reason for Kanhaiya Lal and other witnesses deposing that the appellant was residing in the upper portion of the aforesaid house, if in fact she was not residing there. It was possible in case she had a relationship with the deceased or for any other private reason to have chosen to reside in the said house in Achalda, instead of her own home in Mohammadabad or in Tehra- jpur where she was working as a Shiksha Mitra. Even the cross-examination of PW 1 Kanhaiya Lal was to the effect that there was some dispute of Kanhaiya Lal with Archana because he wanted her to leave his premises, as he was not happy with the appellant who was a single woman at Achalda, inviting male visitors like the deceased to her house in the night. By this cross-examination the appellant implicitly admits her presence in the house. Apart from making a bald statement that she was not residing in the said house she has not given evidence of residing many other place which burden lay on her to discharge. The inquest report does not need to contain the details regarding the occupancy of a particular room by the appellant as it mentions that it was in the house of PW-1, Kanhaiya Lal where the dead body of the deceased was found in the upper room. The site plan clearly mentions that the said room was in the occupation of the appellant. In the long written statement of the appellant there was not even a whisper that the deceased and not the appellant was residing in the said house.;