1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1127 OF 2009 Dr. Niyaz Ahmad .... Applicant. V/s State of Maharashtra ..... Respondent. Mr. P.M. Pradhan, Senior Counsel i/b Mr. S.S. Gawade for the applicant. Mrs. P.P. Shinde, APP for the State. CORAM: V. M. KANADE, J. DATE : 14TH DECEMBER, 2009 P.C.:- 1. Heard the learned Counsel for the applicant and the learned APP for the State. 2. Applicant has been arrested for the offence punishable under sections 302, 201, 197 & 498(A) of the Indian Penal Code which is registered with Nizampura Police Station, Bhiwandi vide C.R. No. 130 of 2007. 3. Applicant is a doctor by profession and he is a physician practicing in Bhiwandi for last number of years. Previously, he was married to Yasmeen Ansari. However, due to matrimonial dispute, he had divorced his wife and, thereafter, he married one Smt. Firoza who also was 2 previously married to one Tarique Khan and had one son and daughter from previous marriage. Firoza died on 06/09/2007. He, therefore, informed her parents and since he was a doctor, he issued death certificate and that she was buried in the presence of her son and other relatives. Five days after her death, her son from previous marriage filed a complaint in the police on 11/09/2007. Her body was exhumed and it was sent to IGM Hospital, Bhiwandi for postmortem which was performed on 14/09/2007. In the postmortem notes the doctor noticed that there were 14 injuries which were anti-mortem and these injuries were found on her head, face legs and other parts of the body. FIR was, therefore, registered against the applicant and he was arrested and one Chappal and one Groom was recovered at his instance as the weapons used in committing the said offence of murder. Applicant’s application for bail was rejected by the Sessions Court. Thereafter, he preferred another application in this court which was allowed to be withdrawn. 4. Shri Pradhan, the learned Senior Counsel appearing on behalf of the applicant submitted that the applicant was falsely implicated in the present case. He submitted that the deceased had died on account of her ailment and that, in fact, her parents had opposed her marriage with the present applicant since, according to her parents, applicant belonged to lower class. He submitted that the applicant, in fact, had filed a suit being Regular Civil Suit No. 675 of 2005 and in 3 the said suit police protection was granted to the present applicant and her parents were restrained from taking away deceased Firoza from the applicant. The learned Counsel submitted that in spite of the order passed by the civil court, her parents used to threaten her and applicant and, therefore, fresh application has been filed by the applicant in the said suit and the civil judge was pleased to direct the Deputy Commissioner of Police, Bhiwandi to provide police protection to the applicant and the deceased. It is further submitted that at the time of funeral, her son and her daughter was present and she was buried at Panjrapol, Bhiwandi. Shri Pradhan, the learned Counsel for the applicant further submitted that since the body was buried for a period of almost 7 to 8 days and it was exhumed thereafter, the process of putrefaction had already started and on account of decomposition of the body, the skin had peeled from the body. He submitted that once the process of putrefaction starts, fissures appear in the body which resemble as lacerated or incised wounds. In support of the said submission, he relied on the opinion of Dr. Modi in Modi’s Medical Jurisprudence & Toxicology. He submitted that the applicant is in jail since last two years and trial is not likely to begin. He submitted that, therefore the applicant is entitled to be released on bail. 5. The learned APP appearing on behalf of the State, on the other hand, invited my attention to the statement of maid servant and neighbours. He submitted that the maid 4 servant in her statement had stated that the applicant used to assault the deceased on many occasions and on the date of the incident, she had noticed that the deceased was lying in motionless condition on her bed. The neighbours have stated that the applicant used to assault the deceased. 6. After having heard both the Counsel at length, in my view, prima facie case is made out by the applicant for grant of bail. The statements of witnesses indicate that on the date of the incident the applicant had immediately called for ambulance and had taken her to Siraj Hospital, Bhiwandi and that the doctor had examined the deceased and had informed the applicant that her ECG was not normal and that she should be taken to civil hospital. Perusal of the statement of doctor indicates that the said doctor had not stated that there were any injuries on the person of the deceased as suggested in the postmortem notes. The statement of doctor, therefore, merely indicates that the deceased was admitted in the hospital and she was having irregular ECG and was therefore asked to be admitted in civil hospital. Before she was admitted in the civil hospital, she died and, therefore, certificate was given by the applicant that she died due to cardiac arrest. Further, it is an admitted position that the almost after 7 to 8 days after the body was buried, it was exhumed by the police. Further, admittedly, in Muslims, body is not kept in coffin. Modi in his book on Medical Jurisprudence & Toxicology has made the following observations in respect of Putrefaction of the 5 Body. “In a decomposed body, a deep groove may be seen around the neck, if the deceased was wearing tight garments around the neck at the time of death. This groove simulates ligature marks as seen in case of strangulation.” Further, it is observed as under:- “Fissures or splits formed in the skin due to decomposition, may simulate lacerated or incised wounds.” 7. It is thus possible that the wounds which are now noticed at the time of postmortem which was conducted on 14/9/2007 i.e. almost after 7 to 8 days after the death and after the body was buried without a coffin, it could have been caused due to putrefaction and decomposition of the body. Under these circumstances, therefore, in my view, applicant deserves to be released on bail. The question whether, in fact, wounds caused were anti-mortem or were caused due to putrefaction, of course, will have to be decided at the hearing of the criminal case. 8. Applicant, therefore, be released on bail in C.R. No.130 6 of 2007 registered with Nizampura Police Station, Bhiwandi in the sum of Rs 5000/- with one or two sureties in the like amount. He shall, however, not enter the City of Bhiwandi till the hearing of the criminal case. Applicant shall give his new residential address to the Superintendent of Jail before his release. He shall report to the nearest Police Station from his new residence once in a month. 9. Application is disposed of. (V.M. KANADE, J.)