Allahabad High Court
Sunita Devi vs State Of U.P. on 19 December, 2022
Author: Rajeev Misra
Bench: Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 69 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 51566 of 2022 Applicant :- Sunita Devi Opposite Party :- State of U.P. Counsel for Applicant :- Prakash Chandra Srivastava Counsel for Opposite Party :- G.A.,Amar Jeet Yadav Hon'ble Rajeev Misra,J.
1. Heard Mr. Prakash Chandra Srivastava, the learned counsel for applicant, the learned A.G.A. for State and Mr. Amar Jeet Yadav, the learned counsel for first informant.
2. Perused the record.
3. Instant bail application has been filed by applicant-Sunita Devi seeking her enlargement on bail in Case Crime No.223 of 2022 under Sections 365, 302, 201 I.P.C., Police Station- Sarailakhansi, District-Mau, during the pendency of trial
4. It transpires from the record that one Rajnath Yadav (Father of the first informant) went missing from 23.04.2022. Irrespective of above, no missing persons report was lodged by family members of the missing person. Ultimately, the dead body of deceased i.e. missing person Raj Nath was recovered on 30.04.2022. After recovery of the dead body, Inquest (Panchayatnama) of the body of deceased was conducted on 30.04.2022. In the opinion of witnesses of inquest (Panch witnesses), the nature of death of deceased was characterised as homicidal.
5. At this juncture, an F.I.R. dated 30.04.2022 was lodged by first informant- Shartendu Yadav i.e son of deceased Rajnath and was registered as Case Crime No.0223 of 2022 under Section 365 I.P.C., Police Station- Sarailakhansi, District-Mau. In the aforesaid F.I.R., three persons, namely, Indoo Devi, Sunita (applicant herein) and Sanjay have been nominated as named accused.
6. After registration of aforesaid F.I.R., Investigating officer proceeded with statutory investigation of afore-mentioned case crime number in terms of Chapter XII Cr.P.C. Therefore, post mortem of the body of deceased was conducted on 01.05.2022. The Doctor, who conducted autopsy on the body of deceased found following ante-mortem injuries on his body:
"i. Abraded Contusion of whole chest.
ii. Abraded contusion of whole abdomen after opening laceration of left lung and liver iii. Crush of just below the right knee joint and lower part of foot"
7. In the opinion of autopsy surgeon cause of death of deceased was haemorrhagic shock due to ante mortem injuries. However, viscera of deceased was preserved.
8. Learned A.G.A. submits that viscera report of the deceased has not yet been received by him.
9. During course of investigation, Investigating officer examined first informant Shartendu Yadav and three other witnesses namely Rambhuwal Yadav, Rajendra Yadav and Shailendra @ Bablu under Sections 161 Cr.P.C. Witnesses so examined gave alleged the complicity of applicant in the crime in question. In view of above, Investigating Officer added Section 302 I.P.C.
10. On the basis of above as well as other material collected by Investigating Officer during course of investigation, he came to the conclusion that complicity of named accused namely Sunita and Sanjay is established in the crime in question. Accordingly, he submitted the charge-sheet dated 03.09.20212 whereby aforementioned named accused have been charge-sheeted under Sections 365 302, 201 I.P.C. Subsequently, Investigating Officer submitted a supplementary charge sheet dated 21.09.2022 whereby named accused Indoo Devi has also been charge-sheeted under Section 365, 302 and 201 I.P.C.
11. Learned counsel for applicant contends that though the applicant is a named as well as charge-sheeted accused but she is innocent. It is an admitted case of the prosecution that the deceased Rajnath Yadav went missing from 23.04.2022. However, no missing persons report was lodged by family members of the deceased. It is then contended by learned counsel for applicant that present case is a case of circumstantial evidence. As such there is no eye witness of the occurrence. Witnesses examined under Section 161 Cr.P.C. by Investigating Officer do not conclusively establish the complicity of applicant in the crime in question. Allegation made in the F.I.R. have no nexus with the crime in question, when considered in the light of post mortem of deceased. According to learned counsel for applicant there is no evidence of last seen nor any recovery has been made from applicant during course of investigation. In the submission of learned counsel for applicant since present case is a case of circumstantial evidence, therefore, complicity of applicant in the crime in question, if any, has to be considered in the light of parameters laid down by Apex Court, for deciding a case based on circumstantial in Sharad Birdhi Chand Sarda vs State Of Maharashtra reported AIR 1984 SC 1622 . Paragraph 152 of the report is relied upon by learned counsel for applicant. In the submission of learned counsel for applicant none of parameters laid down in aforesaid judgement are satisfied against applicant in the present case. The incriminating circumstances that have emerged against applicant during the course of investigation, are not in-proximity to time and manner of occurrence, which may point at the guilt of applicant conclusively and no other hypothesis. The motive behind the occurrence has also not been fully satisfied against applicant. Learned counsel for applicant submits that since the applicant is a lady therefore by virtue of the provisions contained in proviso to section 437 Cr.P.C., she is liable to be enlarged on bail. Even otherwise applicant is a women of clean antecedents in as much as she has no criminal history to her credit except the present one. Applicant is in custody since 19.07.2022. As such, she has undergone almost five months of incarceration. In case the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial. Charge-sheet having been submitted against applicant, therefore, the evidence sought to be relied upon by the prosecution against applicant, stands crystallised. As such, custodial arrest of applicant is not absolutely necessary during the course of trial. On the cumulative strength of above, it is sought to be contended that applicant is liable to be enlarged on bail.
12. Per contra, the learned A.G.A. for State and the learned counsel for first informant have opposed the present bail application. They jointly submit that since the applicant is a named as well as the charge-sheeted accused, therefore, she does not deserve any indulgence by this Court. However, he could not dislodge the factual and legal submissions urged by learned counsel for applicant at this stage.
13. Having heard the learned counsel for applicant, the learned A.G.A. for State, learned counsel for first informant, upon consideration of evidence on record, accusations made as well as complicity of applicant coupled with the fact that applicant is a lady and therefore, by virtue of provisions contained in proviso to section 437 Cr.P.C. she is prima-facie liable to be enlarged on bail, there is no recovery from the applicant nor there is any evidence of last seen, incriminating circumstances that have emerged against applicant during course of investigation, prima-facie, do not establish complicity of applicant upto this stage but without expressing any opinion on the merits of the case, applicant has made out a case for bail.
14. Accordingly, present application for bail is allowed.
15. Let the applicant-Sunita Devi involved in aforesaid case crime number be released on bail on furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned with the following conditions which are being imposed in the interest of justice:-
(i) Applicant will not tamper with prosecution evidence.
(ii) Applicant will abide the orders of court, will attend the court on every date and will not delay the disposal of trial in any manner whatsoever.
(iii) Applicant will not indulge in any unlawful activities.
(iv) Applicant will not misuse the liberty of bail in any manner whatsoever.
16. The identity, status and residential proof of sureties will be verified by court concerned and in case of breach of any of the conditions mentioned above, court concerned will be at liberty to cancel the bail of applicant and send her to prison Order Date :- 19.12.2022 YK