Asha Devi vs State Of Jharkhand

Heard, learned counsel for the petitioner, Mr. Shadab Eqbal and learned counsel for the State, Mr. Sachin Kumar (AAGII) assisted by learned Additional Public Prosecutor, Mr. Anup Pawan Topno and learned counsel for the informant, Mr. Ashok Kr. Pandey.

Learned counsel for the petitioner has submitted that petitioner has prayed for grant of regular bail in connection with Tandwa P.S. Case No.42 of 2020, for the offence registered under Sections 363, 302, 201/34 IPC against unknown for death of one minor child, Dipika Kumari..

During investigation, the Police has recorded the statement of child witness, Jiya Singh, D/o Uday Singh, aged about 3 years, and Ashutosh Kumar, aged about 6 years, whose statements have also been recorded under Section 164 Cr.P.C. and on the basis of such statement of the witnesses, the police has arrested the petitioner (Asha Devi) on 01.05.2020.The nail clipping of the deceased (Dipika Kumari) was taken for forensic examination and the viscera was also sent for forensic examination.

Learned counsel for the petitioner has further submitted that even as per the FSL Report, nothing has been found to suggest that this petitioner has any role in murder of the deceased.

Mr. Sachin Kumar, learned AAG-II has also endorsed the same view. Learned counsel for the petitioner has further submitted, that admittedly these two witnesses, JIya Singh and Ashutosh Kumar are not the witnesses with respect to the commission of the offence rather if their statement is also taken to be true, then only after Dipika Singh fell down and sustained injury, this petitioner took her inside her house and thereafter both the child witnesses went to their respective houses. But in the house no incriminating material was collected by the investigating officer with regard to any suggestion, regarding strangulation made by this petitioner nor any person has seen the petitioner taking the dead-body from her house to the cow-dung heap. Nandini Kumari who left the house along with deceased (Dipika Kumari) who was playing with the deceased has not been examined by the I.O. though other child witnesses have been examined under Sections 161 and 164 Cr.P.C. I.O. has also not bothered to mention that this child witness, namely, Nandini Kumari was not in a position to say anything, as such, she has not been examined. Further, in absence of any material connecting the chain of circumstances, the petitioner who is an aged old lady is under custody without any legal material against her.

Learned counsel for the petitioner has thus, submitted that except the alleged circumstantial evidence which is not complete, there is nothing against the petitioner. The same has been mentioned in the Supplementary counter- affidavit filed by the Superintendent of Police, Chatra.

Para 9 of the Supplementary counter- affidavit has been profitably quoted hereunder:-

"9.That it is true that nobody has seen the dead body in the house of the petitioner nor any eye witness has seen the dead body bringing out from the house of Asha Devi, however, at the outset it has been stated that the case is based on circumstantial evidence and the chain is also complete."

Learned counsel for the State, Mr. Sachin Kumar assisted by learned Addl. Public Prosecutor, Mr. Anup Pawan Topno has opposed the prayer and submitted, that from affidavit filed on record and the material collected during the investigation, it appears that there is circumstantial evidence against the petitioner but no plausible explanation has been given for non-examination of Nandani Kumar and another child witness by the investigating officer nor any reason has been assigned by the investigating officer for non-examination of the same with whom the deceased left her house to play with the other children of the village and as per the statement of Saraswati Devi and Niraj Singh, the victim was playing with the child witnesses and they have supported the prosecution witnesses.

Learned counsel for the informant, Mr. Ashok Kr. Pandey has opposed the prayer for bail and submitted that it is a case of last seen theory.

After hearing, learned counsel for the parties and perusing the materials brought on record, it appears that the police has only arrested this petitioner on the ground that Jiya Singh and Ashutosh Kumar have stated, that when Dipika Kumari fell and sustained injury, this petitioner took her inside the house and bolted the door, but no material thereafter has been collected by the Investigating Officer either from the room showing any sign of commission of the offence or taking the deceased (Dipika Kumari) from house to cow-dung heap nor any material has been collected showing that this petitioner has also sustained injury in her hand while she was trying to strangulate the deceased (Dipika Kumari). FSL report is not suggesting anything against the petitioner and petitioner is in custody since 01.05.2020.

Under the aforesaid circumstances, this petitioner deserves to be enlarged on bail. Accordingly, petitioner (Asha Devi), is directed to be released on bail on furnishing bail bond of Rs. 20,000/- (Rupees Twenty Thousand) with two sureties of the like amount each to the satisfaction of learned C.J.M., Chatra in connection with Tandwa P.S. Case No.42 of 2020 on the following conditions:-

(i) One of the bailors shall be deponent/parivikar of the present case namely, Uday Singh, S/o Ramautar Singh, R/o Village- Kabra, P.O.- Khadhaiya & P.S.- Tandwa, District- Chatra, who has furnished photocopy of his UID Card before this Court in the bail application.

Office is directed to send photo copy of the UID Card of deponent along with this order to the court below so as to verify the authenticity of the bailor.

(ii) Another bailor shall be close relatives of the petitioner i.e. son/daughter/brother/husband.

(iii) Petitioner shall appear before the learned trial court on each and every date fixed for her appearance, failing which the learned trial court shall cancel the bail bonds of the petitioner.

(iv) The Jail Authority shall release the petitioner only after his medical check- up.

(v) The Civil Surgeon, Chatra is directed to medically examine the petitioner at the time of her release and if requires, petitioner shall be taken for quarantine, but if no such requirement is there, she shall be released forthwith, if not wanted in any other case.

(vi) Petitioner shall also comply with all the guidelines issued by the Government to meet the challenges of Covid-19, as the country is passing through Pandemic of Covid-19.