Court No. - 41
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 40266 of 2018 Applicant :- Smt. Nafees Fatma Alias Shama Opposite Party :- State Of U.P.
Counsel for Applicant :- Syed Ahmed Faizan,Syed Farman Ahmad Naqvi Counsel for Opposite Party :- G.A.,Syed Ali Imam
Hon'ble Harsh Kumar,J.
Counter affidavit and rejoinder affidavit filed by learned counsel for the parties today in the Court, are taken on record.
Heard Sri S.F.A. Naqvi, learned counsel for the applicant, Sri Syed Ali Imam, learned counsel for the first informant, learned AGA for the State and perused the record.
Learned counsel for the applicant contended that applicant has been falsely implicated being wife of deceased on the basis of suspicion; that the F.I.R. of the case has been lodged after inordinate delay of more than 07 months, of which no plausible explanation has been given; that as per averments made in F.I.R. lodged by Syed Sardar Husain, the father-in-law of applicant, death of Syed Zafar Abbas @ Abid Husain was committed at his residence M-65, Khan Manzil, Machriya Baazar, Yashodha Nagar, P.S. Naubasta, Kanpur Nagar on 20.6.2015 by administering him poisonous substance and in order to make the evidence disappear, he was buried in Sadar Imambara, District Jaunpur in very hurried manner; that the marriage of applicant with deceased did take place about 10 years back and they were blessed with a son aged about 7 years; that in F.I.R., the brother of applicant and her other family members have also been falsely implicated; that on the persistence by first informant, the body of deceased was exhumed after 07 months on 24.2.2016 and the post mortem of his body was conducted the same day at post mortem house of District Jaunpur, in which cause of death could not be ascertained and viscera was preserved; that as per viscera report (Annexure No.13) Arsenic poison was found in parts 1 to 5 of Viscera; that above viscera report is not admissible in evidence, as the body was not exhumed in accordance with procedure laid down and the viscera parts were also not taken and sent for forensic examination in accordance with rules of medical jurisprudence; that the applicant had no reason to cause death of her husband and there is no incriminating evidence to show that she was at all involved in causing death of her husband; that the real fact is that the husband of applicant died, as a result of heart attack and he was taken to various medical institutions, but was reported to have been brought dead, so no medical treatment could be provided to him; that then applicant informed her father-in-law, the first informant and on his instructions, the body of deceased was taken to traditional burial ground of family of first informant and was buried there in district Jaunpur; that it is wrong to say that applicant was insisting the deceased to give partnership to her brother co-accused Faraz and since the deceased was not agreeing for the same, she committed death of her husband in connivance with her brother by administering him poison; that applicant has no criminal history; that applicant undertakes that she will not misuse the liberty of bail; that applicant is in custody since 17.5.2018; that the applicant is entitled for bail in view of provisions to section 437(1) Cr.P.C.
Learned AGA and learned counsel for the first informant vehemently opposed the prayer of bail and contended that the death of Zafar Abbas @ Abid Husain was committed by his wife and brother-in-law by administering him poison and without providing any medical treatment to him or without any information to first informant (his father), he was buried at Jaunpur in hurried manner for making the evidence of offence disappear; that the deceased was a young man of 38 years and was fully hale and hearty having no complaint of heart ailment; that the contention of his sudden death by heart attack is absolutely wrong; that it is wrong to say that on account of property dispute and to usurp the property of his deceased son and deprived the applicant of her right of inheritance, she has been falsely implicated; that under Mohammedan law, applicant and her son are not sole legal heir of deceased to inherit his properties; that the viscera report is based on forensic test and there is no reason to disbelieve the viscera report on account of exhumation of body in alleged contravention of rules or in contravention of medical jurisprudence; that the trial has commenced and is in progress where examination-in-chief of P.W.1 has been recorded and he is under cross examination; that there is no reason for false implication; that the applicant if released on bail, will misuse the liberty of bail.
Upon hearing learned counsel for the parties, perusal of record and considering the complicity of accused, severity of punishment as well as totality of facts and circumstances, at this stage without commenting on the merits of the case, I do not find it a fit case for bail. The bail application of applicant Smt. Nafees Fatma Alias Shama in case crime no.101 of 2016, under sections 328, 302, 201 IPC, P.S. Naubasta, District Kanpur Nagar, is rejected accordingly.
However, the trial court is requested to conclude the trial expeditiously in accordance with law without unnecessary adjournment to either party.
Order Date :- 27.11.2018 Tamang