Vishnu Prakash Agarwal vs State of U.P.

R.K. Rastogi, J.—Heard Sri Satish Trivedi, learned Senior Advocate assisted by Sri R.P. Dwivedi and Sri Aklank Jain, learned Counsel for the applicant and the learned A.G.A. for the State as well as Mr. B.B. Paul who has filed consent accorded by the learned G.A. for appearing to assist the prosecution.

The applicant Vishnu Prakash Agarwal has applied for bail in Case crime No. 247 of 2007, under Sections 147, 148, 149, 307, 120B 302 I.P.C., P.S. Jagdishpura District Agra.

The prosecution case starts with a F.I.R. lodged by Sri Sanjay at police station Jagdishpura District Agra on 2142007 at 11.25 p.m. it is stated therein that his marriage had taken place with Smt. Soni in the year 1994 and three daughters and one son Arpit were born out of their wed lock. Soni left Sanjay in the year 2000 and started to reside with Neetu alias Pradeep at House No. 1875 Avas Vikas Colony, Agra. A daughter was born out of this union also. The children born to Smt. Soni from Sanjay were previously residing with Smt. Sudha (mother of Smt. Soni). After some time Soni took those children also with her. Then Pradeep alias Neetu started to commit upon Soni. In February 2007 Soni had lodged a report against Pradeep alias Neetu, his brother Sonu, mother Smt. Narangi Devi and brother in law (Bahnoi) Vishnu Prakash, Pradeep''s maternal uncle Gopal and his son Rakesh. Pradeep alias Neetu was sent to Jail in that case but he was released on bail Pradeep felt aggrieved with Soni on account of this incident and he wanted to sell his house after evicting Soni and her children from the house. On 2142007 he came to know that Smt. Soni and his son Arpit had been murdered. He went to her house. There he saw the dead bodies of Soni and Arpit. There murder had been committed by pradeep alias Neetu, his brother Sonu, mother Smt. Narangi Devi and Vishnu Prakash (brother in law). On the basis of above report the police registered the case naming the above persons as suspected culprits and started investigation.

It may be mentioned that during earlier stage of investigation no evidence could be collected against the accused persons but on 952007 the I.O. recorded statement of Km. Pallawi, eldest daughter of Sanjay and Soni whose age was 13 years according to the statement of Sanjay and she stated that she and her brother Arpit and youngest sister Gungun were residing with her mother Soni in the house where murder of Soni was committed, and her two other sister were residing with her maternal grand mother (Nani) and her aunt (Mausi) was also residing there. On 2142007 she herself her mother Soni and her brother Arpit as well as her youngest sister Gungun were at the above house in Sector7 and her grand mother Narangi, her uncle Sonu and Phupha Vishnu Prakash and her father Pradeep, his maternal uncle Keshav and his Keshav''s son Rakesh came to that house; her mother asked her to bring milk from the market then she went to purchase milk; when she returned back and came inside the room, she saw that her mother was laying on the ground; her grand mother had caught hold of the feet of her mother and her father Pradeep was striking on her head from stone and her father''s maternal uncle Keshav had caught hold of Arpit who was saying �Mammi Ko Mat Maro�. At that time Keshav gave a knife blow to Arpit. Her grand mother had pushed the mouth of her mother from a pillow. She saw this incident behind the door leaves; her sister Gungun was weeping in the Court yard (Angan) of the house. Then her Phupha Vishnu Prakash, who was standing there, threw her on the ground and pushed cloth in her mouth; her uncle Sonu was standing on the roof of the house; she clandestinely came out of the room and reached the road and hired a rickshaw and went to the house of her maternal grand mother. None was present there the house was locked and so she sat out side the house. After lapse of 23 hours her maternal aunt (Mausi) reached there with her younger sisters. She asked her as to when she had arrived, then she got perplexed and lost her senses. Then her Mausi gave her water, biscuit and tea there was fear in her mind that the above named persons, who had murdered her mother and brother, may reach there and kill them also. In the evening hermaternal aunt talked with some one on telephone. Her maternal grand mother had gone to Haridwar, she came from there on the next day in the morning. Then she (maternal grand mother) said that she was going to the house of Soni in Sector7. Paliawi was afraid and so she told nothing to her maternal grand mother. She further stated that a few days before the incident, her grand mother, uncle Sonu and Phupha Vishnu Prakash were sitting in their house at Sector 7 and they were planning for murder of her mother Soni and at that time her father Pradeep was also present there, and he was saying that he would not keep Soni for long time, then her uncle Sonu had said that Soni will have to be removed from the way for maintaining peace in the house, and these talks had taken place on 16th April. She further stated that she had heard these talks but she did not tell about these talks to any one earlier. After giving this statement Pallawi started to weep and got perplexed. Then her maternal grand mother provided water to her. Then she lay on a cot. After some time when she became normal, the I.O. again questioned her. Then she stated that she had already narrated the entire incident.

It was submitted by the learned Counsel for the applicant that the above statement of Pallawi recorded after lapse of 18 days from the date of incident does not inspire any confidence and she is actually a tutored witness. He further submitted that even if this statement is believed to be true, the only role assigned to the applicant is that he threw Gungun on the floor and pushed cloth in her mouth. He pointed out that there is no allegation to this effect that any injury was caused to her and she is still alive; and no other active role has been assigned to the applicant, who, according to the statement of Pallawi was outside the room where murder of Soni and Arpit was committed, and she has simply alleged that the applicant had thrown Gungun on the floor and pushed cloth in her mouth and so bail should be granted to him.

Learned A.G.A. as well as the learned Counsel for the complainant opposed the prayer for grant of bail. They submitted that the condition of Gungun had deteriorated as a result of aforesaid incident committed by the accused and she was admitted in S.N. Medical College Hospital, Agra. Photo copies of the documents regarding her treatment were produced before me today during the course of arguments by the learned Counsel for the complainant. The history of the case described in the column of Summary in the Discharge Slip is as under;

�The child was admitted. Complaint of fever moderate grade, one day, abnormal movement. As the child was investigated and diagnosed as a case of post enteric encephalopathy. The child was managed conservatively and discharged on 1252007.�

It was submitted on behalf of the prosecution that the condition of the child had deteriorated due to acts done by the applicant and hence he does not deserve bail. On the other hand, the learned Counsel for the applicant submitted that the so called acts of the accused were allegedly done oh 2142007 and if her condition has deteriorated due to acts of the accused applicant, she must have been admitted in the hospital on that very day or on 2242007 but she was admitted on 2442007 after three days of the incident and the aforesaid description given in the discharge slip reveals that it was case of disease and not of injury.

Learned Counsel appearing on behalf of the prosecution further submitted that the Doctor had stated after examining the patient on 562007 that her condition is still not good. The Doctor has described �post Encephalitis behaviour� in the diagnosis done on 562007. It was submitted by the learned Counsel for the applicant in reply that even if the condition of Gungun is not good as reported by he Doctor, there is nothing on record to show that the accused applicant is responsible for this condition because whatever appears from the Summary of case history described in the discharge slip is that she was admitted as patient of a disease and not as injured and the diagnosis done on 562007 also reveals it to be a case of Encephalitis.

Learned Counsel for the complainant has also produced before me during argument two photos of Gungun. He stated that the larger photograph is of that time when the child was hospitalised and the smaller photo is of her present condition as it is today. Both these photographs reveal that a tube has been administered in her nose. However, there is no mark of injury.

Learned Counsel for the applicant further submitted that at the most Pradeep alias Neetu and his family members could have motive to murder Smt. Soni and Arpit. He pointed out that the informant Sanjay and the accused Pradeep are first cousins, and Pradeep had abducted Soni wife of Sanjay and had married her, but subsequently relations between Soni and Pradip had also deteriorated and Pradip was sent to Jail on the report of Soni under Section 498A I.P.C. So Pradip and his family members might have felt aggrieved with Soni but the applicant Vishnu Prakash who is brotherinlaw (Bahnoi) of Pradip was not his family member. On the other hand he was a common relative of both Sanjay (informant) and accused Pradip, and he could have no motive to murder his sisterinlaw (Sarhaj) Soni and her son Arpit. He further submitted that if the applicant had been present in the courtyard (Angan) of the house at the time of the incident as alleged by Pallavi, he must have noticed from the courtyard that Pallavi had witnessed the entire incident and so he would never have permitted Pallavi (the sole eyewitness or the incident) to go outside the house. But as per prosecution case, he did not do so and threw Gun Gun aged two years only (the real daughter of accused Pradip and deceased Soni) who could tell nothing to any one. The learned Counsel for the applicant contended that such an unnatural conduct assigned to the applicant by the prosecution leads to the conclusion that the entire statement of Pallavi is false because if he had been present on the spot at the time of the incident, he would never have permitted Pallavi to go out of the house alive.

Without expressing any opinion on the merits of the case, but taking into consideration the role assigned to the applicant in the belated statement of Km. Pallawi under Section 161 Cr.P.C. as well as the gap of three days in the admission of Gungun in the hospital from the date of the incident and this fact that she was not admitted as injured but as a case of enteric fever and encephalitis, I am of the view that the applicant deserves to be bailed out.

Let the applicant, above named, be released on bail on his executing personal bond and two sureties each in the like amount to the satisfaction of the Court concerned.

Photocopies of the papers regarding treatment of Gungun and photographs which have been produced before me from the side of the complainant today and which have been referred to in this bail order, shall be retained in the file.