Judgment : Virendra Saran 1. SMT. Usha, wife of Shanker Singh, resident of Rajmargpur, P. S. Atrauli, district Aligarh has come up in appeal against the judgment and order dated 4-8-1933 of Sri V. D. Dube, IV Additional Sessions Judge, Aligarh, in S. T. No. 233 of 1991. The learned Judge has convicted and sentenced the appellant under section 302 IPC to death. A prayer has been made in the appeal that SMT. Usha be released on bail. 2. I have heard Sri B. D. Mandhyan, learned counsel for the appellant and the learned State counsel. The appellant is a young woman, aged about 20 or 21 years of age and at the time of the incident she was hardly 17 years of age. She was on bail during her trial for nearly three years. She did not misuse her bail even on a single occasion. After giving my anxious consideration to the material on record I am of the opinion, that there is every likelihood of the appeal being allowed. As the appeal is yet to be finally decided by a Bench I would refrain from recording any findings one way or the other. 3. THE village where the incident took place is about 3 Miles from Atrauli and witnesses have deposed that anti-social and criminal elements were active as Atrauli and its surrounding areas witnessed communal frenzy those days. 4. SMT. Usha is not named as accused in the FIR but PW 4 Beni Singh, who is the main witness in the fragile prosecution case, professes to have been aroused from deep slumber in the night of 29/30-11-1990 at 2 A.M. due to the shrieks of the appellant. Beni Singh got up and by the flash of his torch light saw the appellant standing in the courtyard of her house with a sickle in her hand. On inquiry the appellant replied that she was bringing in her cattle from outside the house. A few minutes later Beni Singh heard alarm raised by the appellant that her husband had been murdered. When Beni Singh and the villagers reached the house of the appellant she opened the door and told them that some miscreants had jumped into her house and after committing murder of her husband had escaped. A few minutes later Beni Singh heard alarm raised by the appellant that her husband had been murdered. When Beni Singh and the villagers reached the house of the appellant she opened the door and told them that some miscreants had jumped into her house and after committing murder of her husband had escaped. However, in cross-examination the witness gave several vacillating answers and admitted that the door of the house of the appellant was already open when he reached there. Learned counsel for the appellant had submitted that Beni Singh is not a simpleton, he is the Pradhan of the village and it does not stand to reason that he would accept the lame excuse of the appellant of raising shrieks at the odd hour of night, and as soon, as, the villagers had collected he would have disclosed what he saw and heard but there is not even a whisper about his version in the FIR. The FIR was lodged by the Chaukidar Lakhan Singh, simply informing the police that Shanker son of Bhimsen had been murdered in the village and the appellant and other villagers were by the side of the dead body. Learned counsel has argued that the story which is now being told to the court by prosecution witnesses is evidently an after thought. According to the learned counsel initially the police was groping in the dark and the fact that the police did not arrest the appellant, who was always present at her house for three days, speaks in volumes that the prosecution story had seen the light of the day much later. If the Pradhan and other witnesses had seen anything of the sort which they now claim to have seen, the Pradhan himself would have been the author of the FIR. Learned counsel added that when the police was unable to work out the case and the appellant was made a scapegoat. 5. LEARNED counsel for the appellant further submitted that it is very surprising that when the Investigating Officer found the appellant present at her house with stains of blood on her clothes and person he made no inquiry from her for three days and the appellant continued to live there. According to the learned counsel the entire structure of the prosecution case stands on a frail foundation. 6. According to the learned counsel the entire structure of the prosecution case stands on a frail foundation. 6. IN order to consider the submissions made at the bar I checked up the case diary and I do not find that the appellant was interrogated for the first time on 2-12-1990. I also noticed that the Circle Officer has initiated the Parchas of the case diary but has not put any date below his signatures. It cannot, therefore, be ascertained on which date the case diary was placed before the Circle Officer. I further noticed that no case diary number is printed on the Parchas of the case diary and only page numbers are there. I have yet to see the Parchas of a case diary on which the case diary number is not printed. These Parchas also do not bear any thing regarding the date when they reached the office of the Circle Officer or Superintendent of Police There was much to be cross-examined regarding the case diary and the cross-examination of the eye-witnesses is also not upto the mark. Unfortunately the trial was conducted by a lawyer who was a new comer to the profession and lacked experience. No doubt the learned Sessions Judge had commended the young lawyer in his judgment but while discussing the evidence the praise for the young lawyer has evaporated in the thin air. The learned Sessions Judge has himself rejected the defence arguments and has repeatedly commented that the defence counsel has not asked this relevant question or that. A Judge is neither a mute spectator nor an umpire. In a criminal case he is an active participant in the proceedings and he should make every endeavour to find out the truth. The defence counsel being a new comer to the profession heavy responsibility lay one the learned Sessions Judge. The learned counsel for the appellant has criticised the way the trial was handled by the learned Sessions Judge. He has pointed out that there was nothing in the FIR or in the deposition of any witness that the appellant had given out that her husband was impotent and PW 2 Rajbir Singh in his examination-in-chief simply stated facts regarding discovery of the sickle. He has pointed out that there was nothing in the FIR or in the deposition of any witness that the appellant had given out that her husband was impotent and PW 2 Rajbir Singh in his examination-in-chief simply stated facts regarding discovery of the sickle. Learned counsel submitted that the learned Sessions Judge tried to fill up lacunae in the prosecution case and put several questions to PW Rajbir Singh who stated in answer to court questions that the deceased was 13 years of age while the appellant was 22 years of age, and that the appellant had told that her husband was impotent. To Court questions Rajbir Singh stated that at the time of the incident the appellant was alone at her house. The grievance of the learned counsel of the appellant is not without justification. It is beyond my comprehension that the learned trial Judge started getting facts proved beyond what was stated in the examination-chief of the witnesses. It appears that the learned Sessions Judge was under an obsession that the appellant was a murderer and hence he took upon himself to get things proved against the appellant and he over-looked the fact that according to the postmortem report the age of the deceased was 20 years and the statement of Ranbir Singh that the deceased was only 13 years of age should have been taken with a pinch of salt. 7. ANOTHER limb of the submission of the learned counsel for the appellant is that PW, Ranbir Singh has falsely deposed that at the time of the incident the deceased was a lad of 13 years of age while his wife the appellant was much older and 22 years of age. Counsel pointed out that on 26-7-1993 when the statement of the appellant was recorded by the learned Sessions Judge she gave out her age as 20 or 21 years and the learned Sessions Judge did not make any adverse observation about the said statement. In Raisul v. State of U. P., AIR 1977 SC 1 .822, the Supreme Court observed that it is not proper for the learned Sessions; Judge, as well as, High Court to substitute their own estimate of age in preference to the age given by the accused in his statement, as appearances can often be deceptive. In Raisul v. State of U. P., AIR 1977 SC 1 .822, the Supreme Court observed that it is not proper for the learned Sessions; Judge, as well as, High Court to substitute their own estimate of age in preference to the age given by the accused in his statement, as appearances can often be deceptive. The Supreme Court set aside the sentence of death as the accused was below 18 years of age at the time of crime. If we go by the age of the appellant noted in the statement recorded under section 313, CrPC she was merely 17 years of age at the time of incident and the deceased was 20 years old and there was hardly any disparity in age between the husband and the wife. 8. REGARDING the blood stains found on the clothes and person of the appellant it has been submitted by the learned counsel for the appellant that if the husband was murdered it was quite natural for the wife to fall down and clasp the dead body of her' departed dear one in a fit of grief and emotions, and the mere presence of blood on her clothes and body is not at all incriminating. Adverting to the medical evidence learned counsel for the appellant submitted that injury no. 3 of the: deceased could not have been caused with a crescent sickle. The sickle which has been recovered is semi-circular. He referred to injury no. 3 which is an incised wound, 15 cm. in dimension and under which big vessels like common carotid and Jugular veins were cut and mandible bone was also cut. Such, an injury was a result of a blow by a long and heavy cutting weapon according to the counsel. 9. COMMENTING on the discovery of the sickle learned counsel for the appellant submitted that discovery of the sickle at the pointing out of the appellant is untrue and the evidence on this point is in-admissible. The learned counsel referred to the statement of PW 6 Mihi Lal that the appellant was arrested only after she had handed over the sickle, and thus she was in custody when she is alleged to have made the discloser leading to the discovery. According to the counsel the evidence was in-admissible. The learned counsel referred to the statement of PW 6 Mihi Lal that the appellant was arrested only after she had handed over the sickle, and thus she was in custody when she is alleged to have made the discloser leading to the discovery. According to the counsel the evidence was in-admissible. Counsel further commented that there was no reason why the Investigating Officer did not make any effort to recover the sickle for three days even though he had come to know that the appellant was seen with a sickle in her hand on the fateful night. Thus, prima facie these appear to be material inconsistencies and unprobabilities in the prosecution case. 10. CONSIDERING the above arguments of the learned counsel for the appellant there are bright chances of the appeal being allowed. I am in deep anguish to find that the reasons given by the learned Sessions Judge to award sentence of death are devoid of judicial approach. The learned Sessions Judge has compared the appellant with legendary Savitri of Hindu Mythology. Legends can not be equated with recorded events in history the chronicles handed down from one generation to another. Legends can not be harnessed either to resolve the affairs of man-kind or to strengthen the logic in human affairs. If the Judges were to take support from stories or legends then perhaps, the process may have no end. Legends in Arabian Night may completely derail us from the judicial path. Savitri is said to have reclaimed her dead husband from the 'Yamraj'. But to my mind the test of a two mans' chastity is not; her ability to bring back to life her dead husband. Perhaps resurrection is not attainable by feeble mortals and is only claimed by Saints. In the present case the learned Sessions Judge has overlooked the fact that the motive for murder is shrouded with mystery and the case rests on circumstantial evidence and it is not one of the rarest of the rare cases for inflicting sentence of death. Even if the appellant is found to be guilty, it has not been shown that the appellant is an incorrigible type of criminal whose mere existence within the high walls of prison would spill poison in society. Even if the appellant is found to be guilty, it has not been shown that the appellant is an incorrigible type of criminal whose mere existence within the high walls of prison would spill poison in society. There is no dearth of judicial pronouncements that the normal sentence in a murder case is imprisonment for life, and only in extreme and exceptional cases penalty of death should be resorted to. 11. LEARNED state counsel has submitted that since the appellant has been sentenced to death she can not be enlarged on bail. I am unable to persuade myself to accept the submission of the learned State Counsel. Section 389 (1) CrPC reads thus:- "389 (1) Pending any appeal by a convicted person, the Appellate Court may, for reason to be recorded by it in writing, order that the execution of the sentence or order appealed against the suspended and, also if he is in confinement, that he be released on bail, or on his own bond." Section 389 (1) is unambiguous and places no restriction on power of this Court to grant bail in a case of sentence of death. There has, no doubt been a practice of not granting bail in a case of sentence of death. But at the same time, the practice has been departed from in a number of cases. In Criminal Appeal No. 800 of 1964 (Referred No. 58 of 1964), Anjani Kumar and another v. State (decided on 30-10-1964) bail was granted in a death sentence case. There has been other cases also where such bail was granted. The practice of not granting bail in cases of sentence of death developed because in those days appeals involving sentence of death used to be heard within a couple of month and at most within six months. Things have charged now and these appeals take much longer time (1 to 3 years in this Court). Since I am of the opinion that there are; strong chances of the appeal being allowed, it would not be conducive for this young woman to remain confined in the suffocating and pernicious atmosphere in jail. Further, prisoners sentenced to death are segregated and confined in small death cells and made to suffer solitary confinement which in itself is torture beyond measure. 12. Further, prisoners sentenced to death are segregated and confined in small death cells and made to suffer solitary confinement which in itself is torture beyond measure. 12. BEFORE parting with the case it would be appropriate to mention that the observations made in this order have been made only for the purpose of consideration of bail and would not effect the appeal on merits. Since the appellant is very poor and she has given out, after her conviction, that she would not be able to engage a lawyer the amount of surety bonds has to be reasonable. Sri B. D. Mandhyan, learned counsel for appellant who is a lawyer practising mostly on civil side has stated that he has accepted the case finding that the appellant was very poor and in a pitiable condition. 13. IT is, therefore, ordered that the execution of sentence of the appellant shall remain suspended during the pendency of the appeal in this Court and the appellant shall be released on bail on her executing a personal bond of Rs. 7000/- (Rupees seven thousand only) and two sureties each in the like amount to the satisfaction of the Chief (judicial Magistrate, Aligarh. 14. A copy of this order shall be sent to Sri V. D. Dubey, IV Additional Sessions Judge, Aligarh. A Certified copy of the above order shall be supplied to the learned counsel for the appellant on payment of usual charges within three days.