PHULESHRA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri Pawan Kumar Rao, Advocate holding brief of Shri Karunesh Pratap Singh, learned counsel for applicant and learned A.G.A. and also perused the record.

(2.) Submission of counsel for applicant is that the F.I.R. was lodged on the application dated 04.01.2019 and the version as was given in the F.I.R. showed that the deceased was a drunkard and used to come often in an inebriated condition back home. In the night of the incident also he had come back after consuming the liquor and kept creating a lot of noise and he vomited also. At about 3.00 A.M. the deceased was found dead. According to F.I.R. the collateral members of the family nurtured some doubts about a foul play and therefore a request to get post mortem done was made in the F.I.R. Nobody was made accused of committing murder and no suspicion was raised against anybody at all in the F.I.R. Subsequently when the post mortem was done, it was found that the deceased met with a homicidal death. Two contusions on the neck were found and the hyoid bone was also found fractured. On these findings of the autopsy the F.I.R. was registered. Submission is that the evidence which has been collected by the Investigating officer on 09.01.2019 is chiefly in the form of two statements, one that of Sardendu Nishad and another that of Jugnu, in which allegations were made about the illicit relationship which the applicant had with one Harishchandra, who was the step brother of the deceased. It was also alleged that at about 9.00 P.M. on the day of incident the deceased, applicant and Harishchandra were quarrelling and the deceased was found saying to co-accused Harishchandra that he should eliminate the deceased in order to get rid of the day to day trouble which they were facing. Submission is that apart from this evidence there is no other evidence that could be collected during investigation. The argument is that ordinarily if the deceased was strangulated to death, as is being shown by the post mortem report, it is more probable that a male member would have committed this crime and not the applicant who was a lady. It was emphasized by the counsel that if there was any hand of the applicant in the murder and if she was accomplice or if the murder would have taken place in her knowledge, then she would not have allowed her son to report the matter to the police and make request to get the post mortem done. In fact it was upon this application moved by the son of the applicant that the post mortem was performed and the factum of murder could be discovered. It was emphasized by the counsel that the first informant is a minor son of the applicant, and therefore, it cannot be said that he was acting on his own without the express direction of his mother. Submission is that therefore it is a strong circumstance to suggest that whatever might have been the background of the incident and whatever might have been the background of alleged illicit relationship between the applicant and the other co-accused but she was certainly not a willing accomplice and was not a party in the murder and in all probability the murder appears to have been committed without her express consent or participation by the co-accused at the most and in this view of the matter her case appears to be distinguishable from other co-accused. It was also submitted that in such circumstances this case being that of circumstantial evidence the available evidence is wholly inconclusive in nature and does not give rise to a definite inference of guilt against the applicant and at least a prima facie case of bail is made out. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that she is ready to cooperate with the process of law and shall faithfully make herself available before the court whenever required and is also ready to accept all the conditions which the Court may deem fit to impose upon her. It has also been submitted that the applicant is in jail since 10.01.2019 and in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

(3.) Learned A.G.A. has opposed the prayer for bail.