Rama Shanker Rajbhar and Another vs State of U.P.

Shri Kant Tripathi, J.—Heard the Learned Counsel for the Appellant No. 2 and the learned A.G.A. for the Respondent and perused the impugned judgment and order dated 15.02.2011 rendered by Additional Sessions Judge (Fast Track Court No. 3), Ghazipur in S.T. No. 311 of 2008, State v. Rama Shankar Rajbhar and Smt. Subhagi Devi.

Learned Counsel for the Appellant No. 2 submitted that he would presently press the bail prayer of Appellant No. 2 who is the mother-in-law of the deceased and was aged about 65 years.

Learned Counsel for the Appellant No. 2 submitted that the deceased sustained burn injuries accidentally in the house of the Appellants so she was immediately taken to the hospital by the Appellant No. 1 (husband of the deceased) who got her hospitalised there and provided treatment. P.W-6 Dr. S.D. Gautam who initially examined the injured and prepared the report (Ext. Ka-14), has very categorically stated during the cross-examination that the victim told him that she sustained burn injuries accidentally, therefore, the story that the deceased was put to fire for the dowry was not correct but the learned lower court ignored this aspect of the matter while passing the impugned judgment. The Learned Counsel for the Appellant No. 2 further submitted that the dying declaration (Ext. Ka-13) was recorded during the period she was under the control of her family members who procured the dying declaration Ext. Ka-13 with the assistance of PW.5 Kanhaiya lal. The Learned Counsel for the Appellant No. 2 further submitted that P.W-5 Kanhaiya lal during the cross-examination admitted that the victim had not made any statement regarding the complicity of the Appellants for putting her on fire, therefore, on account of this statement, the dying declaration was doubtful. It was also submitted that according to the dying declaration initially both the Appellants assaulted the deceased and then put her on fire and after that the Appellant No. 1 went to his school. If this story was correct, there was no occasion for the husband to take the deceased to the hospital because he had already gone to the school according to the dying declaration. The learned lower court has also overlooked this aspect of the matter. It was next submitted that the learned lower court has not examined the Appellant No. 2 u/s 313 Code of Criminal Procedure. nor provided her any opportunity to explain the incriminating circumstances brought in the prosecution evidence against her. The alleged statement of Appellant No. 2 u/s 313 Code of Criminal Procedure. has been recorded on the sheet of the statement of Appellant No. 1 but that statement does not bear the signature or thumb impression of the Appellant No. 2, therefore, that statement carries no weight. The Appellant No. 2 was on bail during the trial and never abused the same and is presently in jail from 15.02.2011. It was further contended that in case the Appellant is not released on bail, the appeal would, in due course, become infructuous as there is no prospect of the appeal being heard in near future due to heavy dockets.

In my opinion, prima facie, the aforesaid submissions of the Learned Counsel for the Appellant No. has substance, therefore, it is just and expedient to exercise the discretion in favour of the Appellant No. 2.

Keeping in view the entire facts and circumstances of the case and submissions of the Learned Counsel for the Appellant and learned A.G.A., the Appellant No. 2 Smt. Subhagi Devi is released on bail, during the pendency of the appeal, in all the offences she has been convicted and sentenced in the aforesaid session trial, on her furnishing a personal bond and two sureties each in the like amount to the satisfaction of the court concerned.

The realisation of half of the fine shall remain stayed during pendency of the appeal, provided the Appellant No. 2 deposits half of the fine within one month.

On acceptance of bail bond and personal bond, the lower court shall transmit photostat copies thereof to this Court for being kept on the record of this appeal.

Let the paper books be prepared.

List after three weeks for considering the bail prayer of Appellant No. 1.