66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 37120 of 2021 v. State of U.P.) filed by co

"1. Heard Mr. Saurabh Tripathi, the learned counsel for applicant and the learned A.G.A. for State, who are connected virtually.

2. At the very outset, the learned A.G.A. submits that Criminal Misc. Bail Application No.50082 of 2019 (Phoola Devi Vs. State of U.P.) filed by co- accused is already pending before this Court.

3. In view of above, connect afore-mentioned bail application alongwith present application for bail.

4. Matter shall re-appear as fresh on 02.03.2022 alongwith connected matter."

5. Pursuant to above order dated 28.01.2022 both the bail applications above mentioned have been listed together. Since both the bail applications arise out of the same case crime number, therefore, they have been heard together and are being disposed of finally by a common order.

6. It may be noticed here that counter affidavit and rejoinder affidavit have been exchanged in Criminal Misc. Bail Application No.50082 of 2019 (Phoola Devi Vs. State of UP).

7. It transpires from record that in respect of an incident which is alleged to have occurred on 07.09.2019 a delayed FIR dated

20.09.2019 was lodged by first informant, Devendra Saroj and was registered as Case Crime No.0376 of 2019, under Section 304 IPC, Police Station Machhali Shahar, District Jaunpur. In the aforesaid FIR two persons namely, Sunil Saroj and Smt. Phoola Devi have been nominated as named accused.

8. The gravamen of the allegations made in the aforesaid FIR is to the effect that one Pinki wife of first informant, Devendra Saroj sustained burn injuries. The injured was taken to the hospital. Her statement was recorded but ultimately she died. It appears that information regarding death of deceased was communicated at concerned police station by Constable, Bharat Chauhan and Constable, Rakesh Kumar. Thereafter the inquest (panchayatnama) of the body of the deceased was conducted. As per inquest report dated 07.09.2019, the nature of death of the deceased was opined by the panch witnesses to be homicidal. Thereafter postmortem of body of the deceased was conducted on 08.09.2019. In the opinion of the autopsy surgeon, cause of death of the deceased was due to shock as a result of antemortem sever flame burn injuries. In the opinion of the autopsy surgeon soot particles were found present in trachea of the deceased. According to the autopsy surgeon the deceased had sustained following injuries:- "Antemortem Injury - 1st to 2nd degree flame burn injury present over face chest back of chest abdomen both upper arm. Left/over leg anterior and posterior except skull. Both palm and below both ankle joint. Rt. lower lip below half thigh parietal region. Line of redness present attested burn injuries about 80% burn present."

9. After registration of aforementioned FIR, investigating officer proceeded with statutory investigation of aforementioned case crime number in terms of Chapter XII CrPC. During course of investigation, investigating officer examined first informant and other witnesses under Section 161 CrPC. On the basis of above and the other material collected during course of investigation, the complicity of the present applicants in the crime in question was prima facie established. Accordingly, investigating officer submitted a charge sheet dated 12.12.2019. After submission of chargesheet cognizance was taken upon the same by court concerned. Since the criminality alleged by the applicant is triable by the Court of Sessions, the court concerned committed the case to the Court of Sessions. Resultantly sessions trial came to be registered in the Court of Sessions.

10. Mr. P.C. Yadav, learned counsel for applicant in Criminal Misc. Bail Application No.37120 of 2021 and Mr. Hriday Narayan Pnadey holding brief of Mr. Rajesh Kumar, learned counsel for the applicant in Criminal Misc. Bail Application No.50082 of 2019 jointly submit that though applicants are named as well as chargesheeted accused but they are innocent. It is next contended that the incident occurred on 07.09.2019 but the FIR was lodged on 20.09.2019. As such, there is a delay of about 13 days in lodging of the FIR. On the basis of above, it is submitted that since the delay/laches in lodging the FIR has not been explained, the prosecution of the applicants in aforementioned case crime number itself cannot be maintained. It is next contended that the dispute is a family dispute. The deceased is the jethani of the applicant, Phoola Devi whereas applicant, Sunil Saroj is the devar of deceased. Applicant, Sunil Saroj and Phoola Devi are husband and wife. It is next contended that the occurrence has taken place at the spur of the moment. As such, no calculated mens rea can be attached to the applicants in committing the crime in question. It is also contended that the applicant, Phoola Devi is a lady. Placing reliance upon the provisions contained in proviso to Section 437 CrPC it is alleged that applicant, Phoola Devi being a lady is liable to be enlarged on bail.

11. Learned counsel for the applicants then contended that the deceased was taken to the hospital on 07.09.2019. However, she succumbed to the burn injuries sustained by her on 20.09.2020. No statement under Section 161 CrPC or dying-declaration of the deceased was recorded. It is lastly contended that applicants are of clean antecedents inasmuch as they have no criminal history to their credit except the present one. It is also contended that applicants are in jail since 30.07.2021 and

27.09.2019. As such, they have undergone sufficient period of incarceration. It is thus urged that in case applicants are enlarged on bail, they shall not misuse the liberty of bail and shall cooperate with the trial. It is lastly contended that chargesheet has already been submitted against applicants. As such, the evidence sought to be relied upon by prosecution against applicants stands crystallized. As such, custodial arrest of applicants is not absolutely necessary during course of trial. It is thus urged that applicants are liable to be enlarged on bail.

12. It is further contended that first informant is not an eye- witness of the occurrence, therefore, present case is a case of substantial evidence. The parameters for deciding a case based on circumstantial evidence have been laid down by the Apex Court in Sharad Birdhi Chand Sarda VS. State of Maharashtra (AIR 1984 SC 1622). However, the parameters laid down in the aforesaid judgment are not satisfied in the present case against applicants.

13. Per contra, the learned AGA has vehemently opposed these applications for bail. He submits that since the applicants are named as well as chargesheeted accused, no indulgence be granted in their favour by this Court. Learned AGA has taken the Court to the case diary of concerned case crime number. On the basis of above, he submits that children of the deceased/first informant namely, Himanshu and Priya were examined by the investigating officer under Section 161 CrPC. They have supported the prosecution story and have implicated the present applicants in the commission of the crime in question. Though the aforesaid witnesses are child witnesses but there is no such material on record on the basis of which their testimonies are liable to be disbelieved. Present case recorded deliberate act of immolation of the wife of first informant. The deceased died on account of 80% 1st to 2nd degree flame burn injuries sustained by her.

14. Having heard learned counsel for applicants, learned AGA for State and upon consideration of evidence on record, this Court does not find any good ground to enlarge the applicants on bail.

15. Accordingly, present bail applications are rejected. Order Date :- 11.3.2022 Shahroz Reason: Location: High Court of Judicature at Allahabad