Chanda Devi @ Bholain vs State Of U.P.
2023 Latest Caselaw 20619 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:157486
 
Court No. - 65
 

 
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 29431 of 2023
 

 
Applicant :- Chanda Devi @ Bholain
 
Opposite Party :- State of U.P.
 
Counsel for Applicant :- Manvendra Singh
 
Counsel for Opposite Party :- G.A,Virendra Kumar Yadav
 

 
Hon'ble Rajeev Misra,J.

1. Heard Mr. Manvendra Singh, the learned counsel for applicant, the learned A.G.A. for State and Miss Mohini Jaiswal, Advocate, holding brief of Mr. Virendra Kumar Yadav, the learned counsel representing first informant.

2. Perused the record.

3. This application for bail has been filed by applicant-Chanda Devi @ Bholain, seeking her enlargement on bail in Case Crime No. 76 of 2023, under Section 302 IPC, Police Station-Thariyaon, District-Fatehpur during the pendency of trial.

4. Record shows that an incident occurred in between 24.02.2023 and 25.02.2023, in which, Chhatrapal, the father of the first informant was put to death.

5. The information regarding the aforesaid occurrence was given by Shyam Babu (Son of the deceased) at the concerned Police Station. On the said information, the inquest (Panchayatnama) of the body of the deceased was conducted. In the opinion of the witnesses of inquest (Panch witnesses), the nature of death of the deceased was characterized as homicidal.

6. After the inquest proceedings were completed, Shyam Babu, son of the deceased namely Chhatrapal lodged a delayed FIR dated 25.02.2023 which was registered as Case Crime No. 76 of 2023, under Section 302 IPC, Police Station-Thariyaon, District-Fatehpur. In the aforesaid FIR, 2 persons namely, Rajrani and Bholain have been nominated as named accused whereas 2 unknown persons have also been arraigned as accused.

7. The gravamen of the allegations made in the FIR to the effect that on 25.02.2023 at 07:00 AM, the dead body of the deceased i.e. father of the first informant was found at the Tube Well. As per the recital contained in the FIR, the death of the deceased was committed by assaulting him with a sharp edged weapon.

8. After above-mentioned FIR was lodged, Investigating Officer proceeded with statutory investigation of concerned case crime number in terms of Chapter-XII Cr.P.C. The post mortem of the body of the deceased was conducted on 26.02.2023. The Autopsy Surgeon, who conducted the autopsy of the body of the deceased found following anti-mortem injuries on the body of the deceased:-

"1. Incised chop wound 8 x 1.5 cm just above (L) Ear on (1) Brain deep ICW.

2. ICW 6 x 1.5 cm on (L) side of occipital Region C Brain Deep Incised (L) Ear.

3. ICW 8 x 20 cm on (L) side of occipital 2.8 cm below (L) ear Brain deep.

4. ICW 4 x 1 cm on (R) Frontal Regional Head Bone deep.

5. ICW 2 x 1 cm on Apex of Head (Vertex region)

6. ICW 4 x 10 cm on (R) Cheek."

9. In the opinion of Autopsy Surgeon, the cause of death of the deceased was Comma as a result of anti-mortem head injury. During course of investigation, Investigating Officer examined the first informant and other witnesses under Section 161 Cr.P.C. Applicant was arrested on 07.03.2023 and on her pointing, an axe having blood stains was recovered. Subsequently, the recovered weapon was sent to F.S.L. Laboratory for chemical examination. As per the F.S.L. report dated 22.07.2023, human blood was found on the same. Ultimately, on the basis of above and other material collected by the Investigating Officer, during course of investigation, he came to the conclusion that complicity of Chanda Devi @ Bholain is established in the crime in question. He, accordingly, submitted the charge sheet dated 26.03.2023 whereby applicant has been charge sheeted under Section 302 IPC.

10. Learned counsel for applicant contends that though applicant is a named as well as charge sheeted accused yet she is liable to be enlarged on bail. Present case is a case of circumstantial evidence and therefore, there is no eye witness of the occurrence in question. The only evidence that has emerged against applicant is the recovery of the weapon i.e. axe having blood stains. As per the F.S.L. report, the said blood stains were of human blood. Except for the above, there is nothing on record to implicate the applicant in the crime in question. Reference was then made to the judgment of the Supreme Court in Sharad Birdhichand Sarda Vs. State of Maharashtra 1984 AIR 1622 (Page 152) and on basis thereof, he contends that the complicity of an accused in a case based upon circumstantial evidence has to be judged in the light of the parameters laid down by the Apex Court in aforementioned judgment. Up to this stage, none of the parameters laid down by Apex Court in aforementioned judgment are satisfied against applicant. No strong motive against applicant for committing the crime in question has emerged either. It is then submitted that the recovery is false inasmuch as, there is no independent witness of the recovery. The signature of the witnesses on the recovery memo is of a person who has appeared subsequent to the recovery. Attention of the Court was further invited to the provisions contained in proviso to Section 437 Cr.P.C. and on basis thereof it is urged that since applicant is a middle aged woman, she is liable to be enlarged on bail.

11. Even otherwise, applicant is a woman of clean antecedents inasmuch as, she has no criminal history to her credit except the present one. Applicant is in jail since 07.03.2023. As such, she has undergone more than 5 months of incarceration. The police report in terms of Section 173(2) Cr.P.C. i.e. charge sheet has already been submitted. As such, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized. Up to this stage, no such circumstance has emerged necessitating the continuation of custodial arrest of applicant during the pendency of trial. He, therefore, submits that applicant is liable to be enlarged on bail. In case, the applicant is enlarged on bail, she shall not misuse the liberty of bail and shall co-operate with the trial.

12. Per contra, the learned A.G.A. for State and the learned counsel representing first informant have vehemently opposed the prayer for bail. They submit that since applicant is a named as well as charge sheeted accused, therefore, she does not deserve any indulgence by this Court. The recovery of weapon of assault i.e. axe was made on the pointing out of applicant which is human blood. The deceased was an old man aged about 65 years. As such, no sympathy be shown by this Court in favour of applicant. However, they could not dislodge the factual and legal submissions urged by the learned counsel for applicant with reference to the record at this stage.

13. Having heard, the learned counsel for applicant, the learned A.G.A. for State, the learned counsel representing first informant, upon perusal of record, evidence, nature and gravity of offence, accusations made and complicity of accused coupled with the fact that applicant is a middle aged lady, therefore, she is entitled to the benefit of the provisions contained in proviso to Section 437 Cr.P.C., the police report in terms of Section 173(2) Cr.P.C. has already been submitted, therefore, the entire evidence sought to be relied upon by the prosecution against applicant stands crystallized, in spite of above, the learned A.G.A. could not point out any such circumstance from the record necessitating the custodial arrest of applicant during the pendency of trial, the judgment of the Supreme Court in Sumit Subhashchandra Gangwal Vs. State of Maharashtra, 2023 LiveLaw (SC) 373 (Paragraph 5), present case is a case of circumstantial evidence, therefore, there is no eye witness of the occurrence, up to this stage, prima-facie, the parameters laid down by the Apex Court in Sharad Birdhichand Sarda (Supra) are not satisfied against applicant, no strong motive has emerged against applicant for committing the crime in question either, the only evidence that has emerged against applicant is the recovery of the weapon of assault on the pointing of applicant, which recovery has been seriously disputed by the learned counsel for applicant, the clean antecedents of the applicant, the period of incarceration undergone but without making any comments on the merits of the case, applicant has made out a case for bail.

14. Accordingly, the bail application is allowed.

15. Let the applicant-Chanda Devi @ Bholain, be released on bail in the aforesaid case crime number on her 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) THE APPLICANT SHALL FILE AN UNDERTAKING TO THE EFFECT THAT HE/SHE SHALL NOT SEEK ANY ADJOURNMENT ON THE DATE FIXED FOR EVIDENCE WHEN THE WITNESSES ARE PRESENT IN COURT. IN CASE OF DEFAULT OF THIS CONDITION, IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT IT AS ABUSE OF LIBERTY OF BAIL AND PASS ORDERS IN ACCORDANCE WITH LAW.

(ii) THE APPLICANT SHALL REMAIN PRESENT BEFORE THE TRIAL COURT ON EACH DATE FIXED, EITHER PERSONALLY OR THROUGH HIS/HER COUNSEL. IN CASE OF HIS/HER ABSENCE, WITHOUT SUFFICIENT CAUSE, THE TRIAL COURT MAY PROCEED AGAINST HIM/HER UNDER SECTION 229-A IPC.

(iii) IN CASE, THE APPLICANT MISUSES THE LIBERTY OF BAIL DURING TRIAL AND IN ORDER TO SECURE HIS/HER PRESENCE PROCLAMATION UNDER SECTION 82 CR.P.C., MAY BE ISSUED AND IF APPLICANT FAILS TO APPEAR BEFORE THE COURT ON THE DATE FIXED IN SUCH PROCLAMATION, THEN, THE TRIAL COURT SHALL INITIATE PROCEEDINGS AGAINST HIM/HER, IN ACCORDANCE WITH LAW, UNDER SECTION 174-A IPC.

(iv) THE APPLICANT SHALL REMAIN PRESENT, IN PERSON, BEFORE THE TRIAL COURT ON DATES FIXED FOR (1) OPENING OF THE CASE, (2) FRAMING OF CHARGE AND (3) RECORDING OF STATEMENT UNDER SECTION 313 CR.P.C. IF IN THE OPINION OF THE TRIAL COURT ABSENCE OF THE APPLICANT IS DELIBERATE OR WITHOUT SUFFICIENT CAUSE, THEN IT SHALL BE OPEN FOR THE TRIAL COURT TO TREAT SUCH DEFAULT AS ABUSE OF LIBERTY OF BAIL AND PROCEED AGAINST THE HIM/HER IN ACCORDANCE WITH LAW.

(v) THE TRIAL COURT MAY MAKE ALL POSSIBLE EFFORTS/ENDEAVOUR AND TRY TO CONCLUDE THE TRIAL WITHIN A PERIOD OF ONE YEAR AFTER THE RELEASE OF THE APPLICANT.

16. However, it is made clear that any wilful violation of above conditions by the applicant, shall have serious repercussion on her bail so granted by this Court and the trial court is at liberty to cancel the bail, after recording the reasons for doing so, in the given case of any of the condition mentioned above.

Order Date :- 4.8.2023

Vinay