NASIR Vs. STATE OF U.P.

JUDGEMENT

(1.) Heard learned Counsel for the appellant and the learned Additional Government Advocate and perused the record. This is the first bail application made on behalf of the applicant-appellant.

(2.) Learned Counsel for the appellant submitted that it is a case of almost no evidence as P.W. 1 Jahir the real brother of the deceased Munni Devi, P.W. 2 Mujaffar Ali alleged witness of extra-judicial confession, P.W. 3 Asgar Ali the maternal father-in-law of the appellant who is said to be the witness of having seen the deceased going along with the appellant to the field where she was murdered, P.W. 4 Ala Deen, P.W. 5 Peer Mohammad and P.W.6 Chhote the witnesses of having seen of the appellant going along with the deceased on the fateful day have all turned hostile and have not deposed anything in the Court which may be used against the appellant as evidence. The contention is that the case is based on circumstantial evidence, but the circumstances which have been made the basis of conviction are all vague, conjectural and speculative in nature and are also too feeble and inconclusive to connect the appellant with the crime. Further submission is that the deceased had gone to her field on 8.10.2012 and when she did not return back the appellant kept searching for her at his relatives places but when she could not be traced out, a Gumsudgi report was lodged by him on 10.10.2012. Thereafter on 11.10.2012 another application was given by the appellant in the police station reporting the recovery of the dead body in a field near the graveyard. After a sufficient period of fame on 18.10.2012 the brother of the deceased lodged a report in the police station making allegations against the appellant for meeting out ill-treatment to his wife for the reason that she had not given birth to a son. It was also alleged that because of the same grouse she was ousted from the house by the appellant a number of times and therefore the appellant himself has possibly killed his wife. The argument is that it has been admitted in the version given by the brother of the deceased in his report that the appellant himself had informed him about the disappearance of his wife as early as on 8.10.2012 which is the date of her disappearance itself. Yet her real brother did not make any accusation against the appellant for the next ten days till 18.10.2012. The submission is that this drawn out reticence maintained by the brother of the deceased goes a long way to vouchsafe for the innocence of the appellant as there cannot be any earthly explanation for not reporting anything against the appellant for ten days. Attention of the Court has also been drawn to the statement of P.W.1 who has deposed in the Court that actually a son was also born out of the wedlock who had subsequently died. It has been sought to be argued that in view of the aforesaid admission of the P.W.1 even the alleged motive for ill-treating the wife and subsequently murdering her for that reason also looses its ground because if the son did not survive, there was no reason for the appellant to accuse his wife for not giving birth to a male child.

(3.) Learned AGA in rebuttal has submitted that the appellant had reported the disappearance of his wife after two days and this belated report given to the police is by itself a strong incriminating circumstance against him as the explanation for the delay, as has been given in the report, that the appellant kept searching for his wife is quite unacceptable for the simple reason that she had, even according to the appellant, gone to her field to cut the Bajra crop and therefore, there was no reason for the appellant to have presumed that she could go to her relatives or any where else without giving him a prior information. It sounds very unnatural that the appellant could have had any reason to suspect or anticipate any such outing having been made by the deceased specially when she had two minor daughters also in which one was seven years old child. The submission is that after having committed the murder of his wife and concealing it in the field the appellant was just buying time so that the animals should eat away the dead body and the same may not be identified. According to learned AGA the appellant being the husband was the prime custodian of his wife and is, therefore, in that capacity, having the onus to explain properly the circumstances of her disappearance from the house under section 106 of Evidence Act as the fact and the details of his whereabouts must be presumed to be within his 'especial knowledge'. The same burden has remained very inadequately discharged by the accused-appellant and therefore, a presumption of guilt must follow against him. further submission is that it is none of the defence case that the deceased had gone with any valuable ornaments which could have tempted some high handed robbers to commit loot and then her murder nor is there any suggestion to the effect made on behalf of the appellant that the deceased was carrying on some affair with some paramour or was being wooed by some infatuated suitors who could have had some reason to kill her after being spurned by her. The contention is that the complete absence of the possibility of there being any other possible assassin even by the method of elimination the entire circumstantial evidence very naturally converges on the appellant-husband who has not been able to show any reason for his false implication.