JUDGEMENT
Amar Saran, Bachchoo Lal, JJ. -
(1.) HEARD learned counsel for the appellants and learned Additional Government Advocate and perused the record of the case. It is submitted by the learned counsel for the appellants that initially a report was lodged by Shahab Uddin, the brother of the deceased Wahab Uddin on 15.11.2010 at 10.45 a.m. that his brother has committed suicide and his dead body is lying in his house and an inquest be conducted. However, belatedly a second report was lodged by Riaz Uddin, son of Wahab Uddin on 16.11.2010 at 12.15 p.m. at P.S., Ramgarh, district Firozabad alleging that the appellant Saira Bano had married the deceased, who was a widower, five years earlier. In the night of 14/15.11.2010, appellant Saira alongwith his brother Yunus alias Lalu and two unknown persons had murdered the informant's uncle Wahab Uddin. When the informant reached the spot, then he learnt these facts from the 12 years old son of the deceased, who was a witness of the occurrence. The previous husband of Saira had also similarly been murdered.
3. Learned counsel for the appellants submitted that the statement of Anshul, P.W. 2 was recorded by the police after one month and five days on 20.12.2010. As the deceased had no other injury except the ligature marks around his neck, the version given by P.W. 2 Anshul that the deceased was also given a beating by the appellants and co -accused, is inconsistent with the solitary evidence of Anshul and the same could not be implicitly relied upon.
4. The appellant Saira had been falsely implicated because the brother of the deceased was interested in the property of the deceased. Appellant Yunus alias Lalu was not even present at the spot.
5. Learned Additional Government Advocate on the other hand argued that a wrong version may have appeared in the first information given by Shahab Uddin because there was a ligature mark on the neck of the deceased and the appellant Saira may have raised a hue and cry that the deceased had committed suicide, which may have initially confused the witnesses and the police.
6. However, as the post -mortem report clearly showed that the cause of death was strangulation, therefore, it is apparent that Shahabuddin was misinformed. There was no reason for the child Anshul, P.W. 2, who was born from the wedlock of the appellant Saira herself with her earlier husband and who was not even born from the deceased Wahab Uddin to have falsely deposed against his mother and maternal uncle (mamu). Some contradictions could have appeared in the evidence of P.W. 2 Anshul on the basis of the grueling cross -examination of a child witness. In any case the onus lay on the appellant Saira to explain under Section 106 of the Evidence Act as to how the deceased had died due to strangulation when admittedly she was present in the house.
7. The claim of Saira that the deceased died by committing suicide is belied by the fact that the cause of death was strangulation and her furnishing a false explanation was an additional circumstance for connecting her with the crime.
8. There was no basis of the assertion of the appellant that the informant was interested in the property of the deceased.
9. The appellant Saira was not on bail during trial, although appellant Yunus alias Lalu had been granted bail. There was no reason for P.W. 2 Anshul having nominated his maternal uncle for this offence if he was not present. It was an error of the Investigating Officer if he chose to record the statement of P.W. 2 after one month or he might have considered him a child witness as he himself appears to be misled by the fact that the deceased had committed suicide because of the false propaganda created by the accused.
10. Having given out thoughtful consideration to the submissions of the parties, without expressing any opinion on the merits of the case, we are not inclined to grant bail to the appellants.
11. Accordingly, the prayer for bail of both the appellants is rejected. However, the hearing of the appeal is expedited. Office is directed to prepare the paper book within three months and to list the appeal for hearing thereafter before the appropriate Bench.;
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