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2021 DIGILAW 887 (ALL)

Aysha Khatoon v. State of U. P.

2021-08-16

SANJAY KUMAR SINGH

body2021
JUDGMENT : 1. Heard learned counsel for the applicant and Mr. Rabindra Kumar Singh, learned Additional Government Advocate representing the State and perused the record of the case. 2. The instant bail application has been filed on behalf of the applicant, Smt. Aysha Khatoon, with a prayer to release her on bail in Case Crime No. 454 of 2020, under Sections 302, 201, 120-B and 34 IPC, police station Partapur, district Meerut, during the pendency of trial. 3. In short compass the facts of the case as unfolded by the prosecution in the first information report are that the complainant, Chanchal Chaudhry, who is friend of one of the deceased-Priya has lodged the first information report on 14.7.2020 at about 10.10 A.M. against the co-accused, Shamshad (husband of the present applicant, Smt. Aysha Khatoon) for the offence under Section 364 IPC, which was registered as Case Crime No. 454 of 2020 at police station Partapur, district Meerut to the effect that the co-accused Shamshad, who is Muslim by caste and was already married with the present applicant had lured and masquerade the deceased-Priya five years ago and had solemnized his second marriage with her. Thereafter, deceased-Priya and her daughter, Kashish (second deceased of this case) were residing with him. After the marriage, the deceased-Priya has telephonically informed the complainant that as she (deceased-Priya) came to know about the first marriage of the co-accused Shamshad, he used to torture and harass and threatened the deceased and her daughter of dire consequence. The Report further mentions that for the last time i.e. on 28.3.2020, the complainant had a conversation with the deceased Priya on phone, and thereafter no telephonic conversation was made between the complainant and deceased. Thereafter, when the accused, Shamshad sold the flat, which was in the name of deceased-Priya and also withdrew the amount from the bank account of the deceased by cheque, then the complainant raised a suspicion that something wrong has happened with both the deceased. The complainant also came to know that scooty of the victim bearing No. UP 14 CY-840 was also lying in the Partapur police station unclaimed. The complainant also came to know that scooty of the victim bearing No. UP 14 CY-840 was also lying in the Partapur police station unclaimed. In such a situation, having no option left, the complainant had given a written report (Tehreer) in the Partapur police station, in which no action was taken by the police and on the pressure of the police personnel she had given an application that she does not want to take any action. Thereupon, the complainant has lodged the present first information report raising suspicion that something untoward has happened with her friend-Priya and her daughter-Kashish. 4. After lodging of the instant F.I.R. the statement of complainant was recorded under Section 161 Cr.P.C. On the basis of aforesaid statement of the complainant, the co-accused, Shamshad was arrested by the police. On interrogation, the co-accused confessed to his guilt before the police and thereafter his confessional statement was recorded, in which he disclosed that complainant Chanchal Chaudhrey had brought the deceased-Priya to him to get the job and he provided her job, and thereafter, the deceased-Priya resided with him (co-accused, Shamshad) under live-in relationship and he used to bear all the expenses of both the deceased. He also stated that in the meantime, some altercation took place between the deceased and him, and the deceased also implicated him (Shamshad) in her rape case, in which settlement has taken place between them, and he has given Rs. 3,00,000/- to deceased Priya for compromising in the said case. Co-accused-Shamshad also stated that the deceased was a very high ambitious lady and also spend much money and was leading luxurious life and when he tried to stop her from doing so, she started squabbling with him. In the intervening night of 28/29.3.2020 when the deceased started quarreling with him and demanded money, then he strangulated the victim to death and also killed her daughter (second deceased) by putting the pillow on her face. The co-accused Shamshad also confessed that the dead bodies of Priya and Vanshika were hid by him in the floor of the L.E.D. room of his house. The official of the police after completing necessary formalities exhumed the dead bodies from the floor of the house, as pointed out by the applicant in his confessional statement, and recovered the skeleton and other parts of the bodies in a decomposed condition. The official of the police after completing necessary formalities exhumed the dead bodies from the floor of the house, as pointed out by the applicant in his confessional statement, and recovered the skeleton and other parts of the bodies in a decomposed condition. After investigation, the case has been converted to one under Sections 302, 201-B and 34 IPC and charge sheet has been submitted by the Investigating Officer against the co-accused, Shamshad, his wife, Ayesha Khatoon (present applicant) and her brother-Dilawar. 5. Learned counsel for the applicant submitted that initially the case was registered for the offence under Section 364 IPC and after investigation the same has been converted to one under Sections 302, 201-B and 34 IPC against the three accused including the present applicant. Learned counsel for the applicant also submitted that being the wife of accused-Shamshad, she has falsely been dragged in this case. The applicant is not named in the F.I.R. The name of the applicant has surfaced in the statement of the co-accused-Shamshad and except the said statement of the co-accused there is no evidence against the applicant. Learned counsel for the applicant further submitted that the co-accused, Shamshad on account of his extra marital relation with the deceased-Priya, ousted the applicant (wife) from his house. The applicant has no concern with the offence in question and in fact the applicant was living in Bihar with her minor son and in the month of February, 2020 the applicant came to Meerut. She has a small boy of four years, who at present is living with his maternal uncle (Mama). There is no direct evidence against the applicant. Nothing has been recovered from the possession or at the pointing out of the applicant. In the present case there is not even an iota of evidence with the prosecution to show that there was any conspiracy between the applicant and co-accused, Shamshad for commission of an offence under Section 302 IPC nor there is any evidence to suggest that they shared any common intention for the murder. There is inconsistency in the statement of the complainant and version of the F.I.R. The complainant in the F.I.R. has not named the applicant. There is inconsistency in the statement of the complainant and version of the F.I.R. The complainant in the F.I.R. has not named the applicant. Learned counsel for the applicant also submitted that the co-accused, namely, Kapil and Nakul Sharma have already been enlarged on bail by the court below and by the Coordinate Bench of this Court vide orders dated 25.5.2021 and 17.12.2020 passed in Bail Application No. 2514 of 2021 and Criminal Misc. Bail Application No. 47216 of 2020 respectively. The applicant has no criminal history to her credit and is languishing in jail since 20.8.2020 and in case she is enlarged on bail she will not misuse the liberty of bail. 6. On the other hand, Mr. Rabindra Kumar Singh, learned Additional Government Advocate vehemently opposed the prayer for bail and contended that it is a double murder case and the applicant along with his brother, Dilshad and husband-Shamshad hatched a criminal conspiracy, in which a young lady and her small daughter have lost their lives. From perusal of the Call Detail Records of the applicant, her husband Shamshad and her brother Dilawar, it is apparently clear that in the whole night of 28.3.2020 and in a day time on 29.8.2020, they had continuous conversation and sending messages to each other. Learned A.G.A. also submitted that at the behest of the accused, Shamshad, one Krishna Gopal Sharma kept the applicant, Ayesha Khatoon along with her brother-Dilawar in his house on rent. 7. So far as co-accused, Nakul Sharma and Kapil are concerned, it is submitted by learned A.G.A. that they have been enlarged on bail by the Coordinate Bench of this Court and the court below on the ground that in the offence in question the only role assigned to them that they mislead the complainant and police about the whereabouts of both the deceased and in the second statement of the complainant recorded on 24.7.2020 the name of co-accused, Nakul Sharma came into light. The case of the present applicant is distinguishable from them. 8. In strong opposition, learned Additional Government Advocate has drawn the attention of the Court towards the statement of the co-accused, Shamshad, recorded before the police, in which he disclosed that on account of the high expenses of the deceased Priya, he was financially bothered and unable to fulfill her expensive and luxurious hobbies. 8. In strong opposition, learned Additional Government Advocate has drawn the attention of the Court towards the statement of the co-accused, Shamshad, recorded before the police, in which he disclosed that on account of the high expenses of the deceased Priya, he was financially bothered and unable to fulfill her expensive and luxurious hobbies. The co-accused, Shamshad in his statement clearly stated that my wife Ayesha @ Soni has told me that if you don't get rid of deceased Priya, you will not see my face. Thereafter, he made a plan along with the applicant and her brother Dilawar to kill both the deceased and in the intervening night of 28/29.3.2021 he killed both the deceased by strangulating their throat and with the help of his brother-in-law (Sala-Dilawar) he buried the dead bodies of both the deceased in the room of the house. 9. Mr. Singh, learned A.G.A. also submitted that the present applicant has pressurized the co-accused for killing the deceased and in this case she is the main apple of discord and played an active role in hatching a conspiracy. Each conspirator plays his separate part in one integrated and united effort to achieve the common purpose. Each one is aware that he has a part to play in the general conspiracy, to accomplish the common object. In this case the applicant had the knowledge or the reason to believe that the offence had been committed, she has caused disappearance of evidence and such act of disappearance has been done with the intention of screening the offender from legal punishment. Learned A.G.A. lastly submitted that the necessary ingredients to constitute the offence are present in the case, therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail he will misuse the liberty of bail. 10. Learned A.G.A. lastly submitted that the necessary ingredients to constitute the offence are present in the case, therefore, the applicant does not deserve any indulgence. In case, the applicant is released on bail he will misuse the liberty of bail. 10. I have considered the submissions of learned counsel for the applicant and learned Additional Government Advocate and the fact that it is a brutal and heinous double murder case, in which a helpless mother, who blindly trusted upon the co-accused, Shamshad and living with him for the last five years, and her little daughter have been flagitiously killed and their dead bodies had been hid by the co-accused Shamshad with the help of his brother-in-law Dilshad (Sala) in the floor of the room, which were recovered on the pointing out of the co-accused, Shamshad in a decomposed condition. The deceased would never have imagined that the place where they lived would become their graveyard. From the Call Detail Report of the accused persons it is clear that in the intervening night of 28/29.3.2020 and in day time on 29.3.2021 there were continuous telephonic conversation amongst the accused persons and they also sent messages to each others and the location of their phones were traced at the place of occurrence, therefore, the involvement of the applicant in the crime cannot be ruled out. The dead bodies of the both the deceased have been buried by the co-accused to destroy the evidence. A criminal conspiracy is generally hatched in secrecy and it is difficult to obtain direct evidence. It is well settled that a man may tell a lie, but circumstances do not. The circumstances of this case as mentioned above are conclusive in nature, which is in proximity to the time and situation. In view of above, the innocence of the applicant cannot be adjudged at pre trial stage. 11. Having considered the facts and circumstances of the case, nature of offence, the gravity involved therein and the manner in which the crime has been committed, no case for bail is made out. 12. The application for bail is hereby rejected. 13. The observation made herein above is only limited for the purpose of disposal of this bail application and will in no way be construed as an expression on the merits of the case. 12. The application for bail is hereby rejected. 13. The observation made herein above is only limited for the purpose of disposal of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led uninfluenced by anything expressed in this order. 14. Office is directed to communicate the facsimile of this order to District Judge, Meerut and the complainant of this case at the earliest.