Virendra Saran - (1.) SMT. Usha, wife of Shanker Singh, resident of Rajmargpur, P. S. Atrauli, district Aligarh has come up in appeal against the judgment and order dated 4-8-1933 of Sri V. D. Dube, IV Additional Sessions Judge, Aligarh, in S. T. No. 233 of 1991. The learned Judge has convicted and sentenced the appellant under section 302 IPC to death. A prayer has been made in the appeal that SMT. Usha be released on bail.
(2.) I have heard Sri B. D. Mandhyan, learned counsel for the appellant and the learned State counsel. The appellant is a young woman, aged about 20 or 21 years of age and at the time of the incident she was hardly 17 years of age. She was on bail during her trial for nearly three years. She did not misuse her bail even on a single occasion. After giving my anxious consideration to the material on record 1 am of the opinion, that there is every likelihood of the appeal being allowed. As the appeal is yet to be finally decided by a Bench I would refrain from recording any findings one way or the other. The village where the incident took place is about 3 Miles from Atrauli and witnesses have deposed that anti-social and criminal elements were active as Atrauli and its surrounding areas witnessed communal frenzy those days.
(3.) SMT. Usha is not named as accused in the FIR but PW 4 Beni Singh, who is the main witness in the fragile prosecution case, professes to have been aroused from deep slumber in the night of 29/30-11-1990 at 2 A.M. due to the shrieks of the appellant. Beni Singh got up and by the flash of his torch light saw the appellant standing in the courtyard of her house with a sickle in her hand. On inquiry the appellant replied that she was bringing in her cattle from outside the house. A few minutes later Beni Singh heard alarm raised by the appellant that her husband had been murdered. When Beni Singh and the villagers reached the house of the appellant she opened the door and told them that some miscreants had jumped into her house and after committing murder of her husband had escaped. However, in cross-examination the witness gave several vacillating answers and admitted that the door of the house of the appellant was already open when he reached there. Learned counsel for the appellant had submitted that Beni Singh is not a simpleton, he is the Pradhan of the village and it does not stand to reason that he would accept the lame excuse of the appellant of raising shrieks at the odd hour of night, and as soon, as, the villagers had collected he would have disclosed what he saw and heard but there is not even a whisper about his version in the FIR. The FIR was lodged by the Chaukidar Lakhan Singh, simply informing the police that Shanker son of Bhimsen had been murdered in the village and the appellant and other villagers were by the side of the dead body. Learned counsel has argued that the story which is now being told to the court by prosecution witnesses is evidently an after thought. According to the learned counsel initially the police was groping in the dark and the fact that the police did not arrest the appellant, who was always present at her house for three days, speaks in volumes that the prosecution story had seen the light of the day much later. If the Pradhan and other witnesses had seen anything of the sort which they now claim to have seen, the Pradhan himself would have been the author of the FIR. Learned counsel added that when the police was unable to work out the case and the appellant was made a scapegoat.;