- (1.) HEARD Sri Har Govind Singh Parihar and Ms. Minakshi Singh, learned counsel for the applicant and learned A.G.A. For the State of U.P. This bail application has been filed by the applicant Smt. Kiran Singh with a prayer that she may be released on bail in case crime No. 71 of 2013, under section 302 IPC, P.S. Mandhata, District Pratapgarh.
(2.) THE facts in brief of this case are that FIR has been lodged by Smt. Rekha Sing on 23.3.2013 at 3.10 P.M. in respect of the incident allegedly occurred on 22.3.2013 at about 2.00 P.M. alleging there in that on 22.3.2013 at 2.00 P.M., a telephonic message was given by her Nanad Smt. Nisha Singh that she was surrounded by the accused Rajendra Bahadur Singh, Shesh Pratap Singh, Smt. Manfoola Singh and Smt. Kiran Singh with intention to commit her murder. On that information the first first informant left her house and came to the house of Smt. Nisha Singh where she saw the dead body of Smt. Nisha Singh lying in a burnt condition which was surrounded by the crowd, she dialled the ambulance sewa No. 108, on that, the ambulance came there and through the ambulance she was taken to a hospital of Pratapgarh. On way to hospital, it was told by Smt. Nisha that on account of the dispute over a wall, she was fallen down forcibly by Shesh Pratap Singh and Kiran Singh and she was over powered by them, thereafter the kerosene was poured upon her by the accused Manphoola and at the exhortation of Kiran and two other persons the co -accused Rajendra set her on fire. The deceased succumbed to her burn injury at about 6.00 A.M. On 23.3.2013 in government hospital, Allahabad. According to the post mortem examination report the deceased had sustained superficial to deep burn all over the body except right thigh anteriorly, both feet, both legs anteriorly and posteriorly 12 c.m. above the angle joint. The cause of death was shock as a result of ante mortem burn injury. The dying declaration of the deceased was also recorded by the Magistrate on 23.3.2013 at 5.05 AM in which she stated that on 22.3.2013 at about 1.00 PM she was beaten by her Jeth Rajendra Bahadur Singh, Jethani Smt. Manphoola, Shesh Pratap Singh, (the son of the Jeth) and her Jeth's daughter -in -law Kiran Singh in the Varanda of her house, thereafter the grass was put and kerosene was poured and she was set on fire. The applicant applied for bail before Addl. Sessions Judge, Court No. 4, Pratapgarh, the same has been rejected on 22.4.2013. It is contended by learned counsel for the applicant that the first informant is not eye witness of the alleged incident. The dying declaration of the deceased was allegedly recorded on 23.3.2013 at 5.05 A.M. By which general allegation is made against the applicant and co -accused that they after pouring kerosene, she was set on fire, the dying declaration is not reliable because according to the post mortem examination report she has sustained 90% burn injury and before recording the dying declaration the fitness certificate has not been obtained from the doctor. The naming of the applicant is after thought. The allegation of pouring the kerosene oil is not against the applicant, according to the FIR, it is against co -accused Manphoola. The role of setting the deceased on fire is assigned to the co -accused Rajendra Bahadur Singh. The applicant is daughter -in -law of the Jeth of the deceased. She was having no concern or dispute with the deceased. She has been falsely implicated only because she is daughter -in -law of the co -accused Rajendra Bahadur Singh. During investigation the statement of the first informant Smt. Rekha Singh has been recorded, she endorsed the FIR version, the statement of Rishabh Singh has been recorded who stated that he has heard that the deceased committed suicide by setting herself on fire because she was too much depressed due to high handedness of co -accused Rajendra Bahadur Singh and others. The similar statements have been given by Babloo Singh, Smt. Saroj Singh and Ram Naresh also. Smt. Saroj Singh also stated that Smt. Nisha Singh committed suicide by way of putting herself on fire, her statement has been followed by Smt. Geeta Singh, Km. Neha Singh, Km. Jyoti Singh, Km. Akansha and Atul Singh. It is a case of suicide, to which a colour of the murder has been given only on the basis of the dying declaration recorded by the magistrate and the case has been converted under section 302 IPC. The applicant is a woman, the story of dying declaration has been cooked up only on the arrival of the deceased's husband from Nagpur, the genuineness of the dying declaration is doubtful because for about two months the fact of recording the dying declaration has not been mentioned in the case diary by the I.O. According to the spot inspection also burnt Kathari, Blanket and Pillow were found and no grass was found at the place of the incident, it also makes the dying declaration doubtful. The deceased was not in a position to give any statement because she died on 23.3.2013 at about 6.00 AM. Whereas her dying declaration was recorded at 5.05 A.M. In such circumstances, the applicant may be released on bail.
(3.) IN reply of the above contention, it is submitted by learned A.G.A. that in the present in the present case the FIR has been lodged under section 302 IPC on 23.3.2013. On account of the family dispute the deceased was set on fire by the applicant and other co -accused persons after pouring kerosene. According to the FIR active role has been assigned to the applicant that she over powered the deceased thereafter kerosene was poured upon her by co -accused Manphoola and ignition was made by co -accused Rajendra Bahadur Singh. The dying declaration of the deceased was recorded by the learned Magistrate in which she has made the allegation against the applicant and other co -accused persons that after pouring kerosene, she was set on fire. The deceased has sustained superficial to deep burn injury all over the body except right thigh, both feet, legs etc. In such circumstances, the applicant may not be released on bail. 4. Considering the facts, circumstances of the case, submissions made by learned counsel for the applicant, learned A.G.A. and from the perusal of the record it appears that the applicant is daughter -in -law of the main accused Rajendra Bahadur Singh. According to the FIR the allegation against her is that she after falling down the deceased was over powered but she has not poured the kerosene on the deceased and ignition was made by the co -accused Rajendra Bahadur Singh, the Jeth of the deceased. The alleged occurrence has taken place on account of the family dispute. There is a dying declaration of the deceased recorded by the Magistrate on 23.3.2013 at 5.05 A.M. In which she stated that she was set on fire after pouring kerosene oil. In such circumstances, after considering the role of the applicant and the fact that she is daughter -in -law of Jeth of the deceased, the case of the applicant is distinguishable with the other co -accused, therefore, the applicant is entitled for bail.;