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2010 DIGILAW 862 (ALL)

Shamshad v. State Of U. P.

2010-03-16

VEDPAL

body2010
Hon'ble Vedpal,J. 1. This is an application for bail on behalf of the accused applicant Shamshad who is involved and detained in Case Crime No.222 of 2008 under Section 302, I.P.C., Police Station Wazirganj, District Badaun. Heard the learned counsel for the applicant as well as learned A.G.A. for the State and perused the record of the case. 2. Prosecution case in brief, as is revealing from the record is that Halim Shah on 29.3.2008 at about 4.00 p.m. lodged F.I.R. at police station Kadar Chowk, District Badaun against accused applicant Shamshad who happens to be his brother to the effect that on 27.3.2008 accused applicant had taken with him his daughter Kumari Jaibul Nisha aged about 14 years pretending that delivery of his wife is due and there is none to look after her. That thereafter on 29.3.2008 at about 12' O clock noon, he brought his daughter Jaibul Nisha at his house in a Maruti car in dead condition. That blood and foams were coming out from the mouth of the dead body of the deceased and from the condition of the dead body, it appeared that somebody has tried to commit rape with Jaibul Nisha and she has taken some poisonous substance. On the basis of the said report, a case under Section 306 I.P.C. was registered at the police station but during the investigation, it was found that the death of the Jaibul Nisha had occurred due to strangulation and the case was converted for the offence punishable under Section 302 I.P.C. 3. Learned counsel for the applicant assailing the veracity of the prosecution case as narrated above, contended that the applicant has been falsely implicated in the case and the applicant is the uncle of the deceased and it is not possible that he will commit rape on the deceased. Learned counsel for the applicant assailing the veracity of the prosecution case as narrated above, contended that the applicant has been falsely implicated in the case and the applicant is the uncle of the deceased and it is not possible that he will commit rape on the deceased. It was further contended that Smt. Bano, the mother of the deceased Jaibul Nisha in her statement had stated that her daughter Jaibul Nisha was pregnant of about 2-3 months and she has sent Jaibul Nisha with her uncle Shamshad for abortion to save the honour of the family and thus it cannot be said that applicant is responsible for the death of Jaibul Nisha and there is no witness either of the factum of rape or of the factum of murder of Jaibul Nisha and the whole of the prosecution case is based on surmises and as such prosecution story cannot be relied on and as such the applicant deserves bail. 4. Bail has been opposed by the learned A.G.A. by contending that the deceased was taken by accused applicant and was brought dead and the burden lies on him under Section 106 of the Indian Evidence Act to prove the death of Jaibul Nisha was not the result of murder. It was further contended that after leaving dead body of the deceased at the house of the complainant, accused fled away which shows his complexity in the murder and that the result of death was not abortion but strangulation and as such the applicant cannot take advantage of the statement of Smt. Bano. That there are sufficient materials against the applicant and as such he does not deserve bail. 5. I have carefully considered the respective submissions made by the parties. The considerations which normally weigh with the court in granting bail in non bailable offence, have been explained by Hon'ble Apex Court in State Vs. Capt. Jagjit Singh, AIR 1962 SC 253 , Gurcharan Singh Vs. State (Delhi Admn.), AIR 1978 SC 179 and Masror Vs. 5. I have carefully considered the respective submissions made by the parties. The considerations which normally weigh with the court in granting bail in non bailable offence, have been explained by Hon'ble Apex Court in State Vs. Capt. Jagjit Singh, AIR 1962 SC 253 , Gurcharan Singh Vs. State (Delhi Admn.), AIR 1978 SC 179 and Masror Vs. State of U.P. (2009) 6 SCR 1030 and basically they are the background of the incident, manner in which the offence was committed, the nature and seriousness of the offence, the character of the evidence, circumstances which are peculiar to the accused, a reasonable possibility of the presence of the accused not being secured at the trial, reasonable apprehension of witnesses being tampered with, the larger interest of the public or the State and other similar factors which may be relevant in the facts and circumstances of the case. Hon'ble Supreme Court in Gobarbhai Naranbhai Singala Vs. State of Gujrat & others AIR 2008 SC 1134 , has observed as under : "This Court in Amarmani Tripathi's case [ (2005) 8 SCC 21 ]: had held that while considering the application for bail, what is required to be looked is, (i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence; (ii) nature and gravity of the charge; (iii) severity of the punishment in the event of conviction; (iv) danger of accused absconding or fleeing if released on bail; (v) character, behaviour, means, position and standing of the accused; (vi) likelihood of the offence being repeated; (vii) reasonable apprehension of the witnesses being tampered with; and (viii) danger, of course, of justice being thwarted by grant of bail." 6. In the instant case, the offence is of serious nature. An unmarried girl aged about 14 years, has lost her life. As per post mortem report, cause of death was not abortion but was 'Asphyxia' as a result of strangulation. The applicant had taken the deceased with him and brought back her in dead condition. Under the provisions of Section 106 of the Indian Evidence Act, burden lies on him to prove that how the death of deceased occurred other than the murder. In the instant case, the F.I.R. was lodged by the brother of the applicant. There appears no evidence which may afford a motive for the first informant to falsely involve his brother. Under the provisions of Section 106 of the Indian Evidence Act, burden lies on him to prove that how the death of deceased occurred other than the murder. In the instant case, the F.I.R. was lodged by the brother of the applicant. There appears no evidence which may afford a motive for the first informant to falsely involve his brother. It is settled law that the requirement to be taken into account while deciding the bail application, is the factors stated above and not the detailed examination of the evidence and exhaustive exploration of the merit thereof. Furthermore, the trial is still to be held, therefore, on account of this reason also, it will not be proper for this court at this stage to express any final opinion on the merit of various contentions raised by the learned counsel for the rival parties but giving them due consideration and having regard to the facts and circumstances of the present case, in the light of the principles laid down by the Hon'ble Apex Court as stated above, I am of the opinion that it is not a fit case for bail at this stage. Bail is therefore, refused and the application for bail is rejected accordingly. 7. However, the trial court is directed to expedite the hearing of the case keeping in view the provisions of Section 309 Cr.P.C. The trial court shall make every endeavor to conclude the session trial expeditiously preferably within a period of six months from the date of the communication of this order, provided the applicant cooperates and does not seek unnecessary adjournment.