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Subhash & Others v. State Of U.P. - CRIMINAL APPEAL No. 5852 of 2006 [2007] RD-AH 10087 (24 May 2007)


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                 Court No. 46

Criminal Appeal No. 5852 of 2006

Krishna alias Krishnapal and others.....................................Appellants


State of U.P....................................................................Opposite party


Hon'ble Amar Saran, J.

Hon'ble R.N. Misra, J.

Heard learned counsel for the appellants and learned Additional Government Advocate and perused the record of the case.

Learned counsel for the appellants submits that at this juncture he is only pressing the bail on behalf of the appellants Krishana alias Krishnapal, the father-in-law and Smt. Sita Devi, mother-in-law, who have been awarded only ten years RI under Sections 498-A/304-B IPC by the learned Additional Sessions Judge/Fast Track Court No. 1, Bulandshahr by order dated 18.09.2006.

It is argued by the learned counsel for the appellants that the co-accused Km. Shushila has been granted bail on 3.10.2006 on the ground that she is an unmarried girl and her future will be ruined if she has to suffer incarnation during the pendency of the appeal.

Therefore, her case is distinguishable from that of the appellants.

The post-mortem report reveals no injury, but viscera was preserved and aluminium phosphide was detected. The stand of the accused was that the deceased has died as a result of illness and there was some reaction of the medicine consumed.

It may be noted that reaction of a medication will not result in aluminium phosphide as detected in viscera. Thus, the deceased had died as a result of poisoning.

Learned counsel for the appellants further sought to argue that P.W. 2 Anand has mentioned that he gave information about the death to the informant in his village, but this fact is refuted by the defence witness who denied his presence.  Nothing material turns on this contradiction.

It is also argued that the post-mortem conducted on 4.1.2002 reveals that the death has taken place one and a half days earlier, which does not tally with the time of death. However, time of death is not known and  only on the basis of surmise it is stated that the death has taken place in the night of 2.1.2002, but there is no eyewitness account as to when death took place.  Moreover, the opinion of the doctor about the time of death is only an opinion evidence.

There is also  evidence that on 25.12.2002, i.e. hardly 6 or 7 days prior to the incident the informant has given Rs. 10,000/- to the accused and has promised to meet the additional demand of Rs. 40,000/- and a scooter. The marriage has taken place only five months earlier on 5.5.2001. There is some suggestion of separate living , but that has not been accepted by the learned Sessions Judge.

It is also argued that the appellants have been in jail for about 10 or 11 months and they are old and weak.

However, in the totality of the circumstances and the gravity of offence, no case for bail is disclosed. The prayer for bail is rejected.

Dated: 24.5.2007




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