IN THE HIGH COURT OF JUDICATURE AT PATNA Cr.Misc. No.43256 of 2009 GEETA DEVI, wife of Rajan Paswan, resident of village Khabra Road, P.S. Kaji Mohammadpur, District Muzaffarpur Versus STATE OF BIHAR ----------- 3. 22.2.2010 Heard Mr. K.N.Diwakar, learned counsel for the petitioner and the counsel for the State. The petitioner facing prosecution for offence under section 302/34 and 328 of the Indian Penal Code while seeking relief of anticipatory bail has taken her defence that the informant of this case being the son of the deceased was not an eye witness and he has named the petitioner as also her father to have given poison to the deceased only on suspicion. Mr. Diwakar in fact has placed strong reliance on the statement of the deceased before a Police Officer wherein he is said to have admitted that due to mistake he had consumed poison believing it to be his medicine on account of darkness in his room. It has thus been contended by the learned counsel that there is no direct ocular evidence of the petitioner having poisoned the deceased and the statement of the deceased before the Police Officer 2 admitting consuming of poison by himself due to mistake is fit to be treated as his dying declaration. Counsel for the State, on the other hand, on the basis of materials in the case diary which has been produced in view of the earlier order of this Court dated 24.12.2009 has submitted that during the course of investigation it has transpired that the petitioner, who was already married to some other person, had developed illicit relationship with the deceased and was resisting that he should declare by the petitioner as his wife in place of Shakuntala Devi, the mother of the informant, who was her first and only legally wedded wife. Learned counsel has also explained that the alleged dying declaration of the deceased dated 28.5.2009 before a Police Officer in absence of any witnesses and in course of treatment in the Sadar hospital would not inspire any confidence, especially when the same appears to have anti-dated by a Police Officer in the date of 28.5.2009 and received by the Investigating Officer of this case after 3 more than three months on 4.8.2009 recorded in paragraph 80 of the case diary. This Court upon giving anxious consideration would find that the accusing finger towards the petitioner has been caused primarily because she was residing with the deceased on the fateful day. The police has found that the house in which the deceased was residing was ransacked and all his important papers including his papers relating to his service were found missing. The police has also found that the deceased himself had lodged a case against co-accused Kantu Paswan, the father of the petitioner, on 12.9.2008 being University P.S.Case No. 8/2008 for offence u/ss 341/ 323/34 of the Indian Penal Code for indiscriminately assaulting him in which the charge sheet also was submitted against the father of the petitioner on 31.10.2008 as also one another person, namely, Rameshwar Rai. There are also materials to show in the case diary that the deceased was desperate in getting her name recorded in the service records of the deceased, who was an employee/ Darban in the University to claim service and post 4 retirement benefit of the deceased. It has also been revealed that the deceased was not prepared to do so in presence of his first wife Shakuntala Devi, the mother of the informant and in fact on this score there was dispute between the deceased on one hand and the petitioner and her father Kantu Paswan on the other in course of which the deceased had also been assaulted giving rise to the aforementioned police case, University P.S.Case No. 8/2008. the statement of the independent witnesses supporting this part of the statement that the petitioner had illicit relationship with the deceased has been fully corroborated by the neighbour residing by the side the quarter of the deceased, namely, Dinesh Kumar, who had stated that the petitioner was staying in the house (quarter) of the deceased and had been insisting for getting her name entered in the service records and when the deceased was not prepared to do so he had been done to death by giving poison by the petitioner. This part of the statement of the immediate neighbour Dinesh Kumar stands further supported by the 5 statement of not only the family members of the deceased but also Shilbhadra Tiwari, Munilal Sawali, Ramashish Mahto and Raghav Kumar Mani, all of whom had stated before the police that the petitioner being though legally married to one Rajan Paswan was residing in the quarter of the deceased and had given poison to him when he had refused to get the name of the petitioner recorded in the service records as his wife. On these materials when the police has found the case to be true and has also submitted a charge sheet, finding the murder of the deceased by poisoning to be true all of them cannot be brushed aside on the basis of an alleged dying declaration of the deceased which by itself remains shrouded in the history. It is to be found from the records that though such statement of the deceased was recorded at 1.00 A.M. on 28.5.2009 in the police station, he had himself claimed that after consuming the poison by mistake he had been taken to Sadar hospital whereafter he had gone to the police station for giving his statement before the police. There is nothing to show 6 that either the Police Officer was summoned by treating doctor of the hospital or that the deceased who also claims to have become unconscious on account of consuming the poison have been treated and discharged by the authorities of the hospital so as to enable him to go alone to the police station for giving his statement before the Police Officer of a different Police Station, namely, Muzaffarpur Town Police Station. The fact that such Fard Beyan was allegedly recorded on 28.5.2009 and yet was received by an adjacent Town Police Station on 14.8.2009 by itself would be demonstrative of the fact that the alleged Fard Beyan/ dying declaration of the deceased was created subsequently and the same in course of supervision by the higher police official was not found to be authentic. The over emphasis of the learned counsel for the petitioner that the informant is not an eye witness and no one has seen the petitioner administering poison to the deceased by itself will not be sufficient to grant anticipatory bail to the petitioner as all the circumstantial 7 evidence gathered by the police in course of investigation had established that both the petitioner and her father were having a greedy eye on the service benefits of the deceased, who was a Guard in the University at Muzaffarpur and when the deceased had refused to insert the name of the petitioner in the service records as his wife initially he was assaulted by the father of the petitioner and his repeated refusal to do so had led to his being done to death by administered him poison by the petitioner and her father. True it is that there is no eye witness to the factum of administering poison to the deceased but then as the petitioner was residing in the quarter of the deceased and was always claiming to be the wife of the deceased, she would owe an explanation to dispel the circumstances that the deceased had consumed poison voluntarily or by mistake. At least the Fard Beyan/ dying declaration for the reasons mentioned above cannot be held to be by itself sufficient to dislodge the chain of circumstances leading to one and only one conclusion that the deceased was done to 8 death by poisoning by the petitioner and her father. All these findings, however, had to be recorded because Mr. Diwakar was over enthusiastic in making his submissions and in fact went to accuse the Court that his submissions were not being duly recorded. Mr. Diwakar in fact seems to be under impression that no case u/s 302 I.P.C. can be brought at home if there be no eye witness. He forgets that even on the basis of circumstantial evidence there can be conviction for offence u/s 302 I.P.C. if the chain of circumstance is complete. However, this Court must make it clear that all these findings had to be recorded because of over insistence of Mr. Diwakar, learned counsel for the petitioner. Be that as it may, this Court on reading of the entire materials from the case diary and for the reasons indicated above would not be in a position to hold that the allegations made in the F.I.R. are either false or have been made with the object of injuring or humiliating the petitioner of having her arrested. Thus, 9 considering the nature and gravity of accusation, this Court is not inclined to grant anticipatory bail to the petitioner. The prayer for anticipatory bail of the petitioner is, accordingly, rejected. It is, however, made clear that if the petitioner would surrender and seek regular bail the same would be decided on its own merits without being influenced by the present order of rejecting her prayer for anticipatory bail. (Mihir Kumar Jha,J.) Surendra/