Manisha Makheeja vs State of U.P.

Karuna Nand Bajpayee, J. - This criminal misc. bail application seeks the release of applicant on bail in case crime No. 151 of 2014, u/s 302, 201, 120-B I.P.C., P.S. Swaroopnagar, District Kanpur Nagar.

Heard Sri G.S. Chaturvedi, Senior counsel assisted by Sri Ajatshatru Pandey, learned counsel for the applicant as well as Sri Vinay Saran, learned counsel for the complainant and Sri Vimlendu Tripathi, learned A.G.A.

Perused the record.

This matter relates to the murder of one Jyoti Shyam Dasani who is said to have been killed on 27.7.2014 at about 11.30 p.m. inside her car by four assailants who are co-accused in this case and at whose instance or from whose possession the incriminating articles belonging to the deceased and the weapons used in the crime by them are said to have been recovered. Another co-accused Piyush, the husband of the deceased is said to have been the main architect of murder at whose behest the crime in question was allegedly committed. The motive which prompted him to indulge in this egregious crime is said to be his illicit love for the applicant who is an unmarried girl. The prosecution has also arraigned the applicant as an accused and the charge is that she has also conspired to facilitate the crime.

The F.I.R of the case was lodged at 12.30 a.m. on 28.7.2014 by co-accused Piyush, the husband of the deceased himself, containing the version that on the day of incident when he along with his wife were going back to their house in a car after taking dinner in a restaurant some 7 or 8 miscreants on four motorcycles intercepted them and he was dragged out of the car and beaten. His wife who was sitting in the car was thereafter abducted along with the car by the miscreants who sped away after committing this incident. Later on the dead body of the deceased was found in the abandoned car.

The investigation of the case was taken up and according to the prosecution it was found that the version given by the husband was only a ruse and an attempt to mislead the authorities and he himself was behind the commission of murder.

The submission of the applicant''s counsel at the very out set is that all the prosecution allegations are false and there is no truth in the allegation that the applicant was having any illicit love relationship with co-accused Piyush. The submission is that the applicant was having only a healthy friendly acquaintance and relationship with Piyush and the applicant had never nurtured any such feeling of love for Piyush as has been suggested by the prosecution. The submission is that in the initial phase of investigation and in the initial statements of the witnesses recorded by the I.O. there was no insinuation against the applicant but later on in connivance with the family of the deceased the case was given an incriminating complexion against the applicant and an improvised concocted version victimising the applicant was introduced. It was, therefore, with the same ulterior object that the I.O. has got recorded the repeated versions of many witnesses again and again, every time introducing a new version and a new story. Further contention is that though it is not being so admitted but if for the sake of argument the entire material collected by the I.O. is taken as such to be true then even this being a case of circumstantial evidence the link of circumstances collected during the course of investigation is wholly insufficient and inadequate to conclusively connect the applicant with the alleged crime. Further submission of the counsel for the applicant is that according to the prosecution allegation the applicant was carrying on a love affair with other co-accused Piyush whose wife is said to have been murdered in this case. The submission is that whatsoever prosecution evidence has been collected by the I.O. if taken to be true can at the most establish that the co-accused Piyush may be the chief architect of murder of his own wife as he wanted to eliminate her from the scene so that his alleged illicit relationship with the applicant may continue. Further submission is that the circumstance collected by the I.O. that before the incident in question when the applicant''s marriage was settled with some other boy she made some effort to dissuade the boy from agreeing with the proposal will also at the most go to indicate that the applicant might indeed be carrying an affair with co-accused Piyush. It has also been pointed out that the call details collected during the course of investigation only indicate the conversations of the co-accused Piyush with other co-accused who are said to be the actual assailants in question who perpetrated the murder. There has never been any conversation of applicant with those assailants at all. It has also been pointed out that according to prosecution there are certain call details showing that on the day of murder, the co-accused Piyush talked a few times with the applicant. Submission is that it shall be wholly unjust to suggest that the talks which took place in between the applicant and co-accused Piyush might have been connected with the macabre incident of murder. Submission is that such a circumstance if taken to be true would only indicate the fact of the relationship of co-accused with the applicant as there used to be conversations taking place in between applicant and co-accused Piyush often and there was nothing abnormal or new in it. Such conversations are equally compatible with the fact of their pre-existing acquaintance or relationship and nothing more. The argument is that it will be a far fetched conjecture to impute that the aforesaid talks on the day of incident which took place between Piyush and the applicant must have had a bearing on the murder. The submission is that there is nothing on record to exclude the hypothesis or the possibility that the co-accused Piyush himself on his own, planned the murder and got it executed with the aid of other co-accused, who are the actual assailants, without any kind of participation of the applicant in this process as a privy and without her ever having any guilty knowledge about the same. The argument is that it cannot be inferred as a matter of rule nor can there be any such presumption of universal application that whenever a husband shall face the charge of eliminating his wife with the motive to perpetuate any extra marital relationship then the second woman should always be held guilty of hatching a conspiracy of murder. It has been emphasised by the counsel that during the course of investigation not a single call could be collected by the I.O. which may be said to have taken place between the applicant and any of the other alleged hired assailants who are the co-accused of this case and are four in number. Neither any such hired assailant talked with the applicant nor did the applicant ever talk to them. Submission of the counsel for the applicant is that whatsoever circumstances have been collected can only indicate the complicity of the co-accused Piyush and other hired assailants and nothing more. As it was not a case of direct evidence but was a case of circumstantial evidence, the applicant has been implicated in this case only on the basis of downright suspicion, as it had surfaced during the course of investigation and was alleged by certain witnesses that co-accused Piyush was a man of amorous proclivities who used to indulge in frequent flirtations. A lot of material was also collected by the I.O. with regard to frequent extravagant talks that used to take place between the co-accused Piyush and one lady Kamini Sachan. But later on for reasons best known to the prosecution she was screened and was given a cover up and the direction of investigation was twisted towards the applicant. The finger of accusation or suspicion against the applicant was raised not because she had actually indulged in any sinister or criminal design but just because of her previous friendly acquaintance with the co-accused Piyush. But such a suspicion, according to the counsel, cannot be stretched to take the place of proof for the purpose of fixing criminal liability of present applicant. It was also submitted that though it is true that the fact of conspiracy can be proved even by the circumstantial evidence but there is substantial difference between the circumstantial evidence and conjectures based on suspicion. The factum of conspiracy has to be proved by some tangible material or circumstances, which there are none in the present case. There is no tangible evidence or material to show that the applicant was a party in the planning or was in league with any of the co-accused for the purposes of committing the crime in question. The counsel has laid stress upon the definition of conspiracy as has been provided under the Indian Penal Code and has tried to emphasise that in order to prove the charge of conspiracy, there has to be an agreement to commit the crime between two or more persons. The contention is that the material available on record is woefully lacking to draw any such inference that there existed any such agreement in between the applicant and co-accused Piyush or between the applicant and any other co-accused who are the actual assailants. The contention is that nothing more than suspicion may be inferred out of the circumstances and the material collected by the I.O. falls far short of proof. Learned Senior counsel has also tried to show that as there was hardly any tangible material to demonstrate the connivance of the applicant in the crime, the Investigating Officer has tried to bridge up the yawning gaps by fabricating the so called confessional statements which are said to have been given by the accused persons of the case before the police. The inadmissibility of such confessional statements and the im-permissibility of their use against the applicant has been emphasised by the counsel. Emphasis was also laid by the counsel on the fact that in the notings claimed by the prosecution to have been made by the deceased in her diary, though a general disgruntled state of mind of the deceased and her discontentment from marital life is reflected but conspicuously enough there is no insinuation against the applicant made by the deceased in the said diary. With regard to the fact that one of the co-accused is an ex-employee of the applicant''s family who had served them as a driver more than year before the incident, the submission is that it is hardly a circumstance to be reckoned against the applicant. The submission is that if an ex-employee of applicant long after relinquishing the service commits some crime or was manipulated by Piyush to commit the crime it shall be very unreasonable to infer that his ex-employer should also be deemed to have had a hand in the crime. It is nothing except an ingenious attempt made by the Investigating Officer who has tried to any how create a nexus between the applicant and the crime. Argument is that even this tenuous linkage has been introduced by way of writing the so called confessional statements of the accused persons in the case diary which have little evidential worth or value. It is also submitted that the applicant being a woman is languishing in jail since 30.7.2014. Several other submissions in order to demonstrate the falsity of the allegations made against the applicant have also been placed forth before the Court. The circumstances which, according to the counsel, led to the false implication of the accused have also been touched upon at length. It has been assured on behalf of the applicant that she is ready to cooperate with the process of law and shall faithfully make herself available before the court whenever required and shall also abide with any such conditions which this court may deem it fit to impose upon her. It has also been submitted that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.

Learned A.G.A. as well as Sri Vinay Saran, learned counsel for the informant have opposed the prayer for bail and have argued that the frequent talks between the applicant and co-accused Piyush on the day of murder could not possibly have been about any other subject except about the murder for which they must be presumed to have jointly planned. It has also been pointed out that there is evidence to the effect that on the day of occurrence when the deceased was present in the restaurant along with co-accused Piyush, she had over heard mobile phone conversation of co-accused Piyush with a female and during that course the deceased also called her aunt to convey that her husband Piyush was talking with some lady and was saying that '' don''t worry the work will be done.'' According to the A.G.A., it is this circumstance which connects the present applicant with murder in question and the word ''work'' used by the co-accused Piyush indicates nothing except the elimination of the deceased. The counsel also pointed out that the applicant had also managed to purchase some SIM cards, which were given along with her own mobile phone to the co-accused Piyush and it has been found that those fake SIM cards and the mobile phone of applicant were used by Piyush for talking with the applicant and also with other co-accused assailants. The argument is that in these circumstances, together with the back ground of the illicit love relationship, the applicant should be presumed to be a party to the conspiracy of murder hatched by the accused persons in the present case. It was also submitted that even though the confessions of accused given before the police may not be used as evidence against them in the court, but while considering the matters of bail, they may be looked into by the court and be used for the purpose of making a decision on the point of bail. Lastly it has also been submitted that the applicant frequently travels abroad and in case she is released on bail there may be a possibility that she would flee away from justice and may not return to face the trial.

I have perused the record in the light of rival submissions made at the bar. A detailed discussion about the merits of the case or about the conclusive or inconclusive nature of evidence is being purposely avoided by the court at this stage, lest the same might cause any prejudice to either side at the stage of trial. But after perusing the record in the light of the submissions made at the bar and after taking an overall view of all the facts and circumstances of this case and the nature of evidence against the applicant which in most part of it appears to be equivocal and capable of giving rise to parallel inferences, the fact of applicant being a woman, the period of detention already undergone, the unlikelihood of early conclusion of trial and also keeping in view the absence of any convincing or credible material to indicate the possibility of tampering with the evidence, this Court is of the view that the applicant''s case stands distinguishable from other co-accused and she, therefore, may be enlarged on bail.

Let the applicant-Manisha Makheeja, involved in Case Crime no.151 of 2014, u/s 302, 201, 120-B I.P.C., P.S.-Swaroopnagar, District-Kanpur Nagar be released on bail on her executing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned on the following conditions :-

(1) The applicant will not make any attempt directly or indirectly to tamper with the prosecution evidence in any manner whatsoever.

(2) The applicant will personally appear on each and every date in the court and her personal presence shall not be exempted unless for the reasons to be recorded the court itself deems necessary to do so in the interest of justice.

(3) The applicant shall personally appear once in the first week of every month in the concerned Police Station and her presence shall be noted in the general diary of the police station. In case of any default, the In-charge, Police Station shall forthwith inform the concerned court about this breach.

(4) The applicant''s passport shall be deposited in the court concern before her release from prison and she shall not leave the country without the prior permission of the court concerned till the proceedings against her are concluded finally.

It may be observed that in the event of any breach of the aforesaid conditions, the court below shall be at liberty to proceed for the cancellation of applicant''s bail regardless of the fact that the applicant''s bail has been granted by the High Court.

It is clarified that the observations, if any, made in this order are strictly confined to the disposal of the bail application and must not be construed to have any reflection on the ultimate merits of the case.