RADHIKA DEVI Vs. STATE OF U P

JUDGEMENT

(1.) THE applicants have applied for bail in the case crime no. 1029 of 2008, under Sections 328 and 302 I.P.C., police station Gambheerpur, district Azamgarh. Heard Sri Ranjit Asthana, the learned counsel for the applicants and Sri Kunwar Siddharth Singh, the learned counsel for the complainant and the learned AGA for the State and perused the records. It is alleged that both the applicants, viz. Radhika Devi and Mannu Devi are wives of the brothers of the deceased. THEre was a dispute between the deceased and his brothers in regard to moveable and immovable properties of the family. THE deceased used to run a transport business in Varanasi. His father and one brother used to run the same business in Kanpur. On 22.12.2008 the deceased had come to his native village. It is also alleged that both the applicants and the husband of the applicant no.1 added poison in the food which was provided to the deceased by them. THE condition of the deceased became critical on taking the food. He started vomiting. THE deceased informed the witnesses Sita Ram and Avadesh Yadav that the accused persons gave him poison added food. THE deceased was taken to PHC THEkma, Azamgarh for treatment where he reached at about 8.45 P.M. on the same day. At about 9 P.M. the deceased was referred to District Hospital, Azamgarh and reached there at about 10.45 P.M. on the same day but his condition continued to be deteriorated and as such the doctor concerned referred the deceased to B.H.U. for treatment on the same day at about 11.30 P.M. When the deceased was being taken to BHU he died on way. THE cause of death could not be ascertained on autopsy of the dead body of the deceased. 'Viscera' was preserved and sent for chemical analysis. Ammonium phosphide poison was found in the Viscera on the chemical analysis. It is also alleged that the wife of the deceased Smt. Girja Devi had also arrived in the hospital on receiving the information of poisoning. THE deceased informed his wife as to how he was administered poison. THE witnesses Girja Devi, Sita Ram Yadav and Avadesh Yadav have supported the FIR version under section 161 Cr.P.C. THE learned counsel for the applicants submitted that the applicants are innocent and have been falsely implicated due to enmity. THE first information report was lodged after about two days of the occurrence without any proper explanation of the delay. THE story that the deceased had made dying declaration before the witnesses Girja Devi, Sita Ram Yadav and Avadesh Yadav has been concocted by the informant in connivance with the police. THE deceased committed suicide on account of the fact that his wife had developed illicit relations with some one else. His condition became critical immediately after consuming position. He was taken to both the hospitals under unconscious condition and was not in a position to make any dying declaration. THE learned counsel appearing for the complainant on the other hand submitted that two independent witnesses namely Sita Ram Yadav and Avadesh Yadav besides the wife of the deceased have very clearly stated under section 161 Cr.P.C. that the deceased informed them that the food provided by the applicants and other accused persons was poisonous and after taking the food his condition became critical. Both the applicants had not only cooked the food but also provided the same to the deceased. THE brother of the deceased Ram Prasad also took the food with the deceased but his food was not poisonous. It was further submitted that the medical papers prepared at the PHC THEkma, Azamgarh and in the District Hospital, Azamgarh do not show that the deceased was unconscious when he was brought in the hospital. In view of the fact that the deceased remained alive at least upto 11.30 P.M. in the night and was not unconscious the story that he had informed his wife and the other two witnesses in regard to the cause of his death is, prima facie, acceptable for the purposes of considering the bail matter. At the stage of bail, it is not proper to express any opinion on merit. It is also not proper to make evaluation of the evidence collected during the investigation. In the case of State of Maharashtra Vs. Sitaram Popat Vetal and another (2004) 7 SCC 521 the Apex Court held in para 6 and 7 as follows: "6.THEre is a need to indicate in the order, reasons for prima facie concluding why bail was being granted particularly where an accused was charged of having committed a serious offence. It is necessary for the courts dealing with application for bail to consider among other circumstances, the following factors also before granting bail, they are: 1. THE nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence.

(2.) REASONABLE apprehension of tampering with the witness or apprehension of threat to the complainant.