Allahabad High Court
Tulsi @ Shiv Kumar vs State Of U.P. on 22 July, 2022
Bench: Mohd. Faiz Khan
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
?Court No. - 12
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 10804 of 2021
Applicant :- Tulsi @ Shiv Kumar
Opposite Party :- State of U.P.
Counsel for Applicant :- Piyush Kumar Singh,Neeraj Singh
Counsel for Opposite Party :- G.A.
Hon'ble Mohd. Faiz Alam Khan,J.
Heard Shri Neeraj Singh, learned counsel for the accused-applicant as well as learned A.G.A. for the State and perused the record.
This bail application has been moved by the accused/applicant- Tulsi @ Shiv Kumar for grant of bail, in Case Crime No. 50 of 2021, under Section 302 and 201 I.P.C., Police Station Bara Sagwar, District Unnao, during trial.
Learned counsel for the accused-applicant while pressing the bail application submits that it is a case of false implication and the first information report of this case was lodged by the first husband of the deceased namely Mohan Lal on 07.05.2021 at Police Station Bara Sagwar, District Unnao against the applicant and one unknown person alleging therein that the deceased Saroj Devi was married to him about 25 years ago, however, about two years ago she had eloped with the applicant (Tulsi) and some days before the dead body of a lady was found in the shrub of the 'canal', who was identified by him by her photograph, clothes and bag as of the deceased. A suspicion has been shown that the deceased has been done to death by the applicant. The postmortem report of the deceased shows that only an abrasion of 12 cm. x 0.1 cm. on front of her neck was found and the cause of death of the deceased was not ascertained and the 'viscera' was preserved and nothing abnormal has also been found in the viscera report. The investigating officer during the course of investigation is stated to have recorded the statement of subsequent husband of the deceased Rakesh Kumar and his brother Shiv Kumar, who have stated that the applicant had taken the deceased with him a few days before and has committed the murder of the deceased.
Highlighting the above facts, it is vehemently submitted that there is no evidence available on record, which may suggest that it is a case of murder as the cause of death of the deceased has not been ascertained and a simple injury which has been found on the neck of the deceased could not be sufficient in the ordinary course of nature to cause her death. Thus, it appears to be a natural death and could not attract Section 302 I.P.C.
It is further submitted that strangely the first information report has been lodged by the first husband of the deceased namely Mohal Lal, while the second husband of the deceased namely Rakesh Kumar was alive and as per the story cooked up by the prosecution the deceased was taken away from the custody of Rakesh Kumar, thus, the story which has been developed by the prosecution is highly suspicious and the motive which has been assigned to the instant applicant could not be believed on the touchstone of probability.
It is also submitted that there is no recovery either from the possession or on the pointing of the deceased and the theory of 'last seen' has been developed subsequently in order to falsely implicate the applicant and the circumstances which are being alleged against the applicant are weak.
It is next submitted that applicant is in jail in this case since 09.05.2021 and he is not having any previous criminal history. Charge-sheet in this case has already been submitted and there is no apprehension that after being released on bail he may flee from the course of law or may otherwise misuse the liberty.
Learned A.G.A., however, opposes the prayer of bail of the applicant on the ground that the applicant has committed heinous offence and, therefore, he is not entitled to be released on bail.
Having heard learned counsel for the parties and having perused the record, it is evident that the case against the applicant rests purely on circumstantial evidence as nobody has seen the applicant committing the offence. The law with regard to the cases based on circumstantial evidence is no more res integra and the same has been settled by 'cantena of judgments' of the Hon'ble Supreme Court. To establish its case which rests on circumstantial evidence, the prosecution is obliged to prove each and every circumstance independently, proved circumstances must form a chain, the cumulative effect of the chain of events/circumstances must be complete not leaving any space for any other person to enter in between and commit the offence, and the cumulative affect of all the proved circumstances must be that it is only and only the accused who has committed the offence.
Coming to the facts and circumstances of the case, firstly, the cause of death has not been ascertained and it is vehemently submitted on behalf of the applicant that this case could not attract the ingredients of Section 302 I.P.C. Moreover, the evidence of 'last seen' has been placed in the form of witness Shiv Kumar and his brother Rakesh Kumar, Sant Ram and Yugal Kishore, who have claimed to have seen the deceased going with the applicant on 30.04.2021. It is submitted that so far as the cases pertaining to the 'last seen' are concerned, there must be close proximity in the time and place in the 'last seen' with the time and place where the dead body has been found, which is missing in this case. It is submitted that the motive which has been assigned to the applicant is very weak. Applicant is in jail in this case since 09.05.2021 without any criminal antecedents. Charge-sheet in this case has also been submitted and the presence of the applicant could be secured before the trial court by placing adequate conditions.
Keeping in view the nature of the offence, evidence, complicity of the accused, severity of punishment, submissions of the learned counsel for the parties and without expressing any opinion on the merits of the case, I am of the considered view that applicant has made out a case for bail. The bail application is thus allowed.
Let the accused/applicant- Tulsi @ Shiv Kumar involved in above-mentioned case, be released on bail on his furnishing a personal bond with two sureties in the like amount to the satisfaction of the court concerned subject to following conditions:-
(i) The applicant shall not tamper with the prosecution evidence by intimidating/pressurizing the witnesses, during the investigation or trial.
(ii) The applicant shall cooperate in the trial sincerely without seeking any adjournment.
(iii) The applicant shall not indulge in any criminal activity or commission of any crime after being released on bail.
In case of breach of any of the above conditions, it shall be a ground for cancellation of bail.
Identity, status and residence proof of the applicant and sureties be verified by the Court concerned before the bonds are accepted.
Observations made herein-above by this court are only for the purpose of disposal of this bail application and shall not be construed as an expression on the merits of the case.
Order Date :- 22.7.2022/Praveen
