Court No. - 68
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 27571 of 2019 Applicant :- Poonam Devi Opposite Party :- State of U.P.
Counsel for Applicant :- Pavan Kumar,Sadaful Islam Jafri,Yashwant Pratap Singh Counsel for Opposite Party :- G.A.,Khurseed Alam Hon'ble Samit Gopal,J.
Heard Sri N.I. Jafri, learned Senior Counsel assisted by Sri Pavan Kumar, learned counsel for the applicant, Sri Khurseed Alam, learned counsel for the first informant and Sri V.B. Upadhyay, learned A.G.A. for the State and perused the record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant, Poonam Devi, seeking enlargement on bail involved in Case Crime No. 137 of 2019, under Sections 304, 506 I.P.C., registered at P.S. Khampar, District Deoria.
Learned Senior Advocate argued that the first information report has been lodged by Ajay Kumar Gupta the son of the deceased and the Jeth of the applicant who is not an eye- witness of the incident regarding murder of his father Umashankar Gupta in which he has nominated the present applicant, her husband namely Krishna Gupta and her son Vishal Kumar Gupta. It is argued that the prosecution story as per the first information report is that there was a dispute going on regarding partition of the property within the family and since the deceased had at some point of time said that he will alienate all his property to his youngest son the accused persons had become inimical to him and on 28.05.2019 at about 05:00 am when he was returning from the call of nature, he was way laid by the accused persons and assaulted with kicks, fist and slaps and also his neck was pressed as a result of which he received injury and died. The said incident is said to have been witnessed by Akshaybar Mishra, Dheeraj Kumar Gupta and Om Prakash Gupta.
Learned counsel for the applicant argued that the prosecution case does not corroborate with the medical evidence at all and has placed a copy of postmortem report which is annexed as Annexure- 6 to the affidavit and has argued that the deceased received one Abrasion, contusion swelling Rt. side, one lacerated wound, one contusion swelling and head injury wherein his right temporal bone was fractured and the membrane was ruptured below which hematoma was present.
Further the cervical was fractured and also the upper part of the sternum was fractured. The doctor who had conducted the postmortem examination opined the cause of death to be haemorrhage and shock due to antimortem strangulation and head injury. It is argued that the injuries as received could not have been caused by hand, kicks, fist and slaps as alleged by the prosecution. Further learned counsel has placed the statement of Dheeraj Kumar Gupta, Akshaybar Mishra and Om Prakash Gupta which are annexed as Annexures- 8, 9 and 10 to the affidavit and has argued that amongst the said three persons Akshaybar Mishra did not name the applicant as being involved in the present murder but later on, to a specific question put to him he stated that he saw the applicant after the incident standing in the crowd. It is argued that the other two witnesses namely Dheeraj Kumar Gupta and Om Prakash Gupta have reiterated the version of the first information report which is incorrect.
Learned counsel has then placed before the Court Annexure- 2 which is a document dated 26.09.2001 by which it is argued that the applicant had alienated his property amongst the family members. Further learned counsel has placed Annexure-3 and has argued that an application under Section 156 (3) Cr.P.C. was filed under Sections 323, 504, 506, 452, 392 I.P.C. by Krishna against Om Prakash, Ajay, Rinku Devi in which the complainant had received injury and his injury report is annexed at page 36 of the affidavit and has argued that the same was filed on 05.04.2014 and was the reason for false implication. It is further argued that the applicant has no criminal history as stated in para 31 and is in jail since 29.05.2019 Per contra learned counsel for the first informant and the learned A.G.A vehemently opposed the prayer for bail and argued that the medical evidence corroborates with the prosecution version. It is further argued that although Annexure- 2 is relied by the learned counsel on behalf of the applicant but it is only confined to the division of the house of the deceased and not other properties. It is argued that the distribution of other properties was still pending. It is further argued that the manner of assault as stated fully corroborates with the injuries received by the deceased as noted by the doctor in the postmortem report. It is argued that the deceased was aged about 70 years and was a weak and a fragile person and it was possible for him to have received injuries by the manner of assault as stated by the prosecution. It is further argued that even the doctor who conducted the postmortem examination has mentioned that the time since death is about half days from the date and time of the postmortem which is 28.05.2019 at 3:10 pm which also corroborates with the time of the incident in question. It is argued that murder of the deceased was committed by the accused persons due to dispute of property. It is further argued that while placing Annexure- 1 to the counter affidavit filed on behalf of the first informant that even prior to the present incident Krishna Gupta and Poonam Gupta had assaulted the deceased for which a non cognizable report was registered on 24.03.2014 and the deceased Daya Shankar Gupta had received injury therein, the copy of which is annexed at page 15. It is argued that the prayer for bail be rejected.
After hearing learned counsel for the parties and looking to the facts and circumstances of the case,I do not find it a fit case bail, hence, the bail application is rejected.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad.
The computer generated copy of such order shall be self attested by the counsel of the party concerned.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 6.1.2021 AS Rathore (Samit Gopal,J.)