High Court

marks were present on his neck. Prima facie it appeared to be murder.

4. The inquest report mentions that the information of the incident was given by Constable Ramesh Kumar. It is mentioned in the inquest report that two sons of the deceased were present there and the deceased's wife was not present. The postmortem examination report mentions multiple abraded contusions present on front of neck 5cm below the both ears, a contusion of size 2cmX2cm present on left side head 8xm above the left eye brow, contusion of size 20cmX15cm present on front of neck underneath the injury no.1. The cause of death has been opined to be asphyxia due to ante mortem throttling.

5. In the statement of the informant-Constable Brijendra Kumar he reiterated the F.I.R. version. The other Constable Ramesh Kumar whose name is mentioned in the F.I.R. also gave the similar statement.

6. Ankit Yadav, son of the deceased, stated that he and his brother Arpit had slept in the inner room. His father used to sleep in the outer room. When he woke up in the morning for going to washroom, he saw his father lying on the floor and blood had come out of his mouth. He went to his mother who was present in the inner room and told about the condition of his father. His mother said that he would have possibly fallen from the bed while sleeping or he might have suffered an attack. His mother came to the spot where his father was lying and said that it appears that he suffered an attack due to which he fell down and suffered injury due to which he died. The deceased's son stated that he should gave an information to Markandey uncle, whereupon his mother told that no one should be informed as persons will have suspicion against them. She asked him to go and sleep. After sometime the deceased's son made a phone call to Markandey uncle. He came there and asked the deceased's wife as to how did it happen. She said that it appears that the deceased had consumed excessive alcohol in the night and he suffered an attack due to which he fell down from the bed and suffered injury. After some time a crowd gathered there and his mother went away some where. He said that he though that she would have gone to the house of Yashveer uncle as she used to visit his place which is near Khurram Nagar. When the police cam, he came to know that his mother had killed his father along with Yashveer and his friends.

7. A similar statement was given by Arpit Yadav, the other son of the deceased. Markandey also gave same statement supporting the statement of deceased's sons Ankit and Arpit. He said that when he reached the deceased's home upon getting information from sons of the deceased, the deceased's wife Poonam was sitting there. He gave information to Amit Yadav nephew of the deceased. He stated that Poonam had told that the deceased died after suffering an attack and falling down but he did not believe the version of Poonam. He further said that some neighbours stated that Poonam had caused the incident. He further stated he had suspicion against wife of the deceased since before as she used to go to Khurram Nagar to see someone and Yashveer used to visit her place. He had seen Shiv Kumar (the applicant in Criminal Misc. Bail Application No.7609 of 2024) also visiting the deceased's wife. He stated that he believe that Poonam Yadav had killed her husband Guru Prasad in connivance with Yashveer, Shiv Kumar and Ravi Sharma (the applicant in Criminal Misc. Bail Application No.6171 of 2024). Amit Yadav, nephew of the deceased also gave a similar statement.

8. The State has filed a counter affidavit annexing therewith copies of the material collected during investigation, a copy of the relevant extracts of case diary containing the observations based on call detail records and a copy of charge sheet dated

06.04.2024.

9. A rejoinder affidavit has been filed on behalf of the applicant. The learned counsel for the applicant in Criminal Misc. Bail Application No.7609 of 2024 has filed a supplementary affidavit in the court today, annexing therewith extracts of case diary containing CD No.1. It shows that the police arrested the deceased's wife Poonam Yadav on the basis of an information received from a mukhbir on 18.02.2024 and immediately after her arrest, her statement was recorded in the arrest memo itself and further that upon information given by Poonam, the police went to the house of co-accused Yashveer, from where all the three other co-accused persons namely Yashveer, Shiv Kumar and Ravi Sharma were arrested. Arrest memo of the widow of the deceased and of Yashveer, Shiv Kumar and Ravi Sharma is a composite document, although they were arrested from separate places and, obviously, at separate points of time.

10. The learned counsel for the applicants have submitted that the allegation made in the arrest memo regarding statement of the deceased's wife is not her statement recorded under Section 161 Cr.P.C. He further submitted that there are several discrepancies in the information recorded by the Investigating Officer in the case diary and the various documents as initially the F.I.R. was lodged only under Section 302 I.P.C. against wife of the deceased and her lover. There was no mention of Section 120-B I.P.C. or Section 34 or Section 149 I.P.C. Some of the documents make a mention of Section 120-B and 302 I.P.C. but Section 34 and 149 I.P.C. are not mentioned in any of the documents. He has submitted that the prosecution based on investigation suffering from such gross defects and anomalies cannot stand and there is no chance of conviction of the accused persons in a trial instituted on the basis of the prosecution suffering from such gross defects and irregularities.

11. Per contra, the learned A.G.A.-I has submitted that the complicity of the applicants in commission of the offence has been established during investigation. He has drawn attention of the court to the relevant extracts of the case diary annexed as Annexure No.CA-9 to the counter affidavit filed by the State, wherein it is recorded that at the time of the incident the mobile phone locations of accused persons Ravi Sharma, Shiv Kumar, Poonam Yadav and Raj Gautam @ Yashveer have been found near the place of the incident.

12. Replying to this submission the learned counsel for the applicants have submitted that the applicants are resident of the same locality and therefore their mobile location will naturally be near the place of the incident, but the mere location of their mobile phones do not connect them with the commission of the offence, more particularly when the applicants do not have any conversation with the widow of the deceased at or near the time of the incident.

13. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the deceased died inside his house in the midst of the night; that the children of the deceased have stated that their mother was present in the inner room while their father died in the outer room and she stated that their father might have suffered an attack and has fallen down causing his death; that the children of the deceased have stated about relations of their mother with some other person, although they did not say anything about her relations with the applicant; in the statement of widow of the deceased she stated that she has killed her husband along with the three other accused persons, including the applicants; the mobile phone location of the applicants, although not conclusive for deciding their involvement in the commission of offence, is a relevant piece of evidence and without making any further observation which may affect the outcome of the trial, I am of the view that the peculiar facts of the case do not warrant exercise of discretion of this court by enlarging the applicants on bail, at least till recording statements of some witnesses of facts by the trial court.

14. Accordingly, the bail application is rejected at this stage. The applicants may file a fresh application after recording of statements of some witnesses of fact. (Subhash Vidyarthi, J.) Order Date :- 25.4.2025 Ram.

marks were present on his neck. Prima facie it appeared to be murder.

4. The inquest report mentions that the information of the incident was given by Constable Ramesh Kumar. It is mentioned in the inquest report that two sons of the deceased were present there and the deceased's wife was not present. The postmortem examination report mentions multiple abraded contusions present on front of neck 5cm below the both ears, a contusion of size 2cmX2cm present on left side head 8xm above the left eye brow, contusion of size 20cmX15cm present on front of neck underneath the injury no.1. The cause of death has been opined to be asphyxia due to ante mortem throttling.

5. In the statement of the informant-Constable Brijendra Kumar he reiterated the F.I.R. version. The other Constable Ramesh Kumar whose name is mentioned in the F.I.R. also gave the similar statement.

6. Ankit Yadav, son of the deceased, stated that he and his brother Arpit had slept in the inner room. His father used to sleep in the outer room. When he woke up in the morning for going to washroom, he saw his father lying on the floor and blood had come out of his mouth. He went to his mother who was present in the inner room and told about the condition of his father. His mother said that he would have possibly fallen from the bed while sleeping or he might have suffered an attack. His mother came to the spot where his father was lying and said that it appears that he suffered an attack due to which he fell down and suffered injury due to which he died. The deceased's son stated that he should gave an information to Markandey uncle, whereupon his mother told that no one should be informed as persons will have suspicion against them. She asked him to go and sleep. After sometime the deceased's son made a phone call to Markandey uncle. He came there and asked the deceased's wife as to how did it happen. She said that it appears that the deceased had consumed excessive alcohol in the night and he suffered an attack due to which he fell down from the bed and suffered injury. After some time a crowd gathered there and his mother went away some where. He said that he though that she would have gone to the house of Yashveer uncle as she used to visit his place which is near Khurram Nagar. When the police cam, he came to know that his mother had killed his father along with Yashveer and his friends.

7. A similar statement was given by Arpit Yadav, the other son of the deceased. Markandey also gave same statement supporting the statement of deceased's sons Ankit and Arpit. He said that when he reached the deceased's home upon getting information from sons of the deceased, the deceased's wife Poonam was sitting there. He gave information to Amit Yadav nephew of the deceased. He stated that Poonam had told that the deceased died after suffering an attack and falling down but he did not believe the version of Poonam. He further said that some neighbours stated that Poonam had caused the incident. He further stated he had suspicion against wife of the deceased since before as she used to go to Khurram Nagar to see someone and Yashveer used to visit her place. He had seen Shiv Kumar (the applicant in Criminal Misc. Bail Application No.7609 of 2024) also visiting the deceased's wife. He stated that he believe that Poonam Yadav had killed her husband Guru Prasad in connivance with Yashveer, Shiv Kumar and Ravi Sharma (the applicant in Criminal Misc. Bail Application No.6171 of 2024). Amit Yadav, nephew of the deceased also gave a similar statement.

8. The State has filed a counter affidavit annexing therewith copies of the material collected during investigation, a copy of the relevant extracts of case diary containing the observations based on call detail records and a copy of charge sheet dated

06.04.2024.

9. A rejoinder affidavit has been filed on behalf of the applicant. The learned counsel for the applicant in Criminal Misc. Bail Application No.7609 of 2024 has filed a supplementary affidavit in the court today, annexing therewith extracts of case diary containing CD No.1. It shows that the police arrested the deceased's wife Poonam Yadav on the basis of an information received from a mukhbir on 18.02.2024 and immediately after her arrest, her statement was recorded in the arrest memo itself and further that upon information given by Poonam, the police went to the house of co-accused Yashveer, from where all the three other co-accused persons namely Yashveer, Shiv Kumar and Ravi Sharma were arrested. Arrest memo of the widow of the deceased and of Yashveer, Shiv Kumar and Ravi Sharma is a composite document, although they were arrested from separate places and, obviously, at separate points of time.

10. The learned counsel for the applicants have submitted that the allegation made in the arrest memo regarding statement of the deceased's wife is not her statement recorded under Section 161 Cr.P.C. He further submitted that there are several discrepancies in the information recorded by the Investigating Officer in the case diary and the various documents as initially the F.I.R. was lodged only under Section 302 I.P.C. against wife of the deceased and her lover. There was no mention of Section 120-B I.P.C. or Section 34 or Section 149 I.P.C. Some of the documents make a mention of Section 120-B and 302 I.P.C. but Section 34 and 149 I.P.C. are not mentioned in any of the documents. He has submitted that the prosecution based on investigation suffering from such gross defects and anomalies cannot stand and there is no chance of conviction of the accused persons in a trial instituted on the basis of the prosecution suffering from such gross defects and irregularities.

11. Per contra, the learned A.G.A.-I has submitted that the complicity of the applicants in commission of the offence has been established during investigation. He has drawn attention of the court to the relevant extracts of the case diary annexed as Annexure No.CA-9 to the counter affidavit filed by the State, wherein it is recorded that at the time of the incident the mobile phone locations of accused persons Ravi Sharma, Shiv Kumar, Poonam Yadav and Raj Gautam @ Yashveer have been found near the place of the incident.

12. Replying to this submission the learned counsel for the applicants have submitted that the applicants are resident of the same locality and therefore their mobile location will naturally be near the place of the incident, but the mere location of their mobile phones do not connect them with the commission of the offence, more particularly when the applicants do not have any conversation with the widow of the deceased at or near the time of the incident.

13. Having considered the aforesaid facts and circumstances of the case and keeping in view the fact that the deceased died inside his house in the midst of the night; that the children of the deceased have stated that their mother was present in the inner room while their father died in the outer room and she stated that their father might have suffered an attack and has fallen down causing his death; that the children of the deceased have stated about relations of their mother with some other person, although they did not say anything about her relations with the applicant; in the statement of widow of the deceased she stated that she has killed her husband along with the three other accused persons, including the applicants; the mobile phone location of the applicants, although not conclusive for deciding their involvement in the commission of offence, is a relevant piece of evidence and without making any further observation which may affect the outcome of the trial, I am of the view that the peculiar facts of the case do not warrant exercise of discretion of this court by enlarging the applicants on bail, at least till recording statements of some witnesses of facts by the trial court.

14. Accordingly, the bail application is rejected at this stage. The applicants may file a fresh application after recording of statements of some witnesses of fact. (Subhash Vidyarthi, J.) Order Date :- 25.4.2025 Ram.