{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3726 OF 2009 1. Devidas s/o Baburao Sonwane Age-52 years, Occ-Service R/o Amrawati Police Officers Club Amrawati 2. Arun s/o Ramchandra Deokar Age-39 years, Occ-Service R/o Mhaswad, Tq & Dist-Satara 3. Shivaji s/o Baburao Sudrik Age-60 years, Occ-Retired ASI R/o Varad Colony, Bhutkar Wadi Ahmednagar, Dist-Ahmednagar 4. Deepak s/o Nanasaheb Haral Age-34 years, Occ-Service R/o Shahunagar, Kedgoan, Ahmednagar, Dist-Ahmednagar 5. Sunil s/o Sitaram Chavan Age-35 years, occ-Service R/o Bhagwan baba Chowk, Nirmalnagar, Ahmednagar 6. Balasaheb s/o Shankarrao Ahiwale Age-52 years, Occ-Service R/o Police Quarters, Wakad-Pune Tq & Dist-Pune APPLICANTS VERSUS The State of Maharashtra Through Police Station {2} Bhingar Camp, Ahmednagar RESPONDENT ....... Mrs.S.S.Jadhav, h/f Mr.V.P.Latange, Advocate for applicants Mrs.Yogita M.Kshirsagar, APP for the State Mr.R.S.Deshmukh, Advocate assisting to APP ....... WITH CRIMINAL APPLICATION NO.3740 OF 2009 Tukaram s/o Kondiba Vahile Age-50 years, Occ-Service As Police Inspector, Traffic Branch Ahmednagar R/o 303, Apurna Building Govindpur Nagar, Ahmednagar APPLICANT VERSUS 1. The State of Maharashtra Through Police Inspector Bhingar Camp Police Station Ahmednagar 2. The Deputy Superintendent Of Police, Ahmednagar RESPONDENTS ....... Mr.R.N.Dhorde, h/f Mr.P.S.Dighe, Advocate for applicant Mrs.Yogita M.Kshirsagar, APP for the State Mr.R.S.Deshmukh, Advocate assisting to APP ....... [CORAM : A.V.POTDAR, J.] RESERVED ON : 5th December 2009 PRONOUNCED ON: 10th December 2009 {3} ORDER: 1. By both these applications, the applicants have prayed to release them on anticipatory bail in the event of their arrest in connection with CR No.93/2009 registered with Bhingar Camp Police Station, Ahmednagar for an offence punishable u/s 306, 330, 331, 341, 343, 201, 109 and 166 r/w 34 of the Indian Penal Code. 2. Heard respective learned counsel for applicants followed by the submissions of learned APP, who is assisted by Mr.R.S.Deshmukh. Perused the papers of investigation carried out till today. 3. It appears that this offence came to be registered in respect of death of one Suman Kale, who was informer of police and was belonging to Pardhi community, who expired on 14.05.2007 in Deepak Hospital, Ahmednagar while she was under medical treatment. It appears that an ADR was registered in respect of the said incident vide ADR No.00/2007 in Topkhana police station, Ahmednagar. It further appears that statements of police staff, attached to Kotwali police station and LCB, Nagar Taluka police station, Nagar, came to be recorded. It also appears that in respect of the said demise of said Suman, FIR was also registered with Bhingar Camp Police Station, at CR No. 78/2009/2007 on 16.05.2007 for an offence punishable u/s 309 of {4} the IPC. 4. It appears that dead body of said Suman was referred for postmortem to Government Medical Hospital, Aurangabad. It further appears that relatives of said Suman alleged that she was called in the LCB office under the pretext of inquiry where she was brutally assaulted and on 14.05.2007, while she was grievously injured, instead of taking her to the Government Hospital, she was deliberately shifted to private hospital where she died due to injuries sustained during the assault by police officers. It is alleged that the said act on the part of police authorities, of shifting Suman to private hospital, is nothing but an attempt of creating a scenario that said Suman died due to suicidal death. It is the contention of the relatives of said Suman, this is a custodial death. It appears that the relatives of deceased Suman, particularly her son, Saheba Gajanan Kale, tried to lodged a compliant of the said incident with the police, however no cognizance was taken by the police and hence he was constrained to file writ petition No. 363/2008 before this Court seeking directions to the police authorities to take cognizance and to carry out the investigation in the matter through an independent investigating agency. 5. It further appears that some inquiry was carried out by the Sub Divisional Officer and he submitted the report of the inquiry. On the basis of said inquiry report, an offence at CR No. 93/2009 came to be registered with Bhingar Police Station, {5} Ahmednagar in which the present applicants are arrayed as accused and hence they have approached this Court for their release on anticipatory bail in the event of their arrest in connection with CR No.93/2009. 6. During the course of submissions, it is tried to urge by learned counsel for applicants, by pointing out the statements of the witnesses recorded in connection with FIR at CR No.78/2009, registered u/s 309 on 16.05.2007, that though said Suman was present in the office of LCB on 14.05.2007, yet before she entered in the office she was feeling uneasy and hence she was shifted to nearby private hospital on the suspicion that she had consumed poison which is used to kill lice. It is urged that she was treated there. It is also urged that statements of witnesses disclose that she was present in the office of LCB on 12.05.2007 in connection with the complaint lodged by her against her husband in respect of ill-treatment. The concerned lady ASI has produced certain documents i.e. document showing that intimation was given to said Suman and her husband to remain present in the office of Women Assistant Cell on 12.05.1007. However, it appears that there is no acknowledgment given either by said Suman or her husband on the said document styled as intimation, in the token that they have received the said intimation and then remained present in the office of LCB on 12.05.2007. According to Mrs.Jadhav learned counsel for applicants, investigation carried out in connection of this offence, clearly disclose that Suman was {6} present in the office of LCB, however she was not in the custody. It is not disputed that the applicants are police officials and staff attached to the LCB. According to Mr.Dhorde, learned counsel for applicant, the alleged role played by this applicant is that he had brought said Suman from her residence to the office of LCB. However, the fact remains that at the material time, this applicant was not attached to the office of LCB, however he was attached to Kotwali police Station. In this premise, if he was not carrying out the investigation, in any offence registered with Kotwali police station, either against said Suman or in the offence where she was required for inquiry, then his role in respect of collecting her from her residence and brining her to the LCB office cannot be, by any stretch of imagination, considered as connected with his official duty. 7. The application is vehemently opposed by the learned APP on various grounds. It is contended that the papers of investigation clearly establish that the death of Suman is a custodial death and not caused due to consumption of poison. According to learned APP, the injuries, which are mentioned in the PM notes and in the report submitted by the expert committee appointed for the examination of medical papers, clearly establish that there are injury marks of violence on the person of deceased Suman before she was admitted in Deepak Hospital. It is also pointed out that if something wrong had happened with her in the premises of the police station, then why she was not taken to the {7} government hospital, which is at a close distance from the office of the LCB. The conduct of the applicants, in taking her to the private hospital, shows that the applicants tried to conceal something so that the correct factual position should not come in light. 8. Considering the rival submissions and on perusal of investigation papers and the petitions filed by the applicants as well as son of deceased, it is clear that after the demise of said Suman, on 16.05.2007, the FIR was lodged for an offence punishable u/s 309 and the investigation was carried out from that angle only. It is to be noted that Suman expired in Deepak Hospital while under treatment on 16.05.2007 and thereafter, her dead body was sent for Postmortem, after carrying out the inquest Panchanama. It has to bear in mind that this inquest Panchanama is carried out in presence of Tahsildar. In the premise, a question arouse that if the death took place while deceased was under medical treatment in a private hospital, then what was the necessity to call for the Tahsildar while conducting the inquest Panchanama. Again it has to be noted that certain injury marks were found on the person of Suman during the course of inquest Panchanama. This fact is clearly established from the injury marks found on the dead body of Suman in column No.17 of the PM report. Total 12 surface injuries were noted on the body of Suman when the Postmortem was conducted. Out of these 12 injures, apart from 4 injuries, remaining injuries were noted as ante mortem injuries. It has to bear in mind that during the inquiry, in {8} respect of death of said Suman, a committee of Medical Experts was appointed to ascertain the cause of death. It is noticed by the said committee that out of 12 injuries found on her body, 4 injuries might have been caused during medical treatment in the private hospital, however, age of the rest of the injuries, it is opined by the medical experts, is about 48 hours before admission of Suman in Deepak Hospital. It has to be noted that according to applicants, Suman was admitted in Deepak Hospital with an intention to provide her instant medical help, as she was the informer of police It is quite natural that in the case papers, in respect of indoor patients, note is always taken in respect of physical inspection before admission. It is pertinent to note that not a single injury was noticed and noted in the case papers maintained in the Deepak Hospital, at the time of admission of Suman. It is also opined by the medical experts that death of Suman is caused due to these multiple injuries. It is also opined that in the natural course, due to such type of injuries, instant death may not cause, however, death of Suman is caused due to these injuries only. In the premise, at least at this stage, it cannot be inferred that death of Suman is a suicidal death caused due to consumption of poison. On the contrary, the death is caused due to these injuries and hence it can be inferred that the death is a homicidal death. 9. Once the papers of investigation disclose that the death is a homicidal death and soon before her admission in Deepak Hospital, on 14.05.2007, she was with the present {9} applicants, though it is contended that she was called for inquiry in connection with an offence in respect of robbery of gold ornaments by one Astari Hamya Chavan, yet the relatives of Suman contended that she was brought in the police station in view of certain statement made by said Astari that the said gold ornaments were given by her son in law to Suman and hence she was brought in the LCB office. However, fact remains that during this period Suman was in the company of the applicants, for which no official record is maintained. Considering the serious nature of the allegations against the applicants, and the papers of investigation, which prima facie disclose involvement of the applicants in the said offence, this is not a case to exercise discretion u/s 438 of the Criminal Procedure Code to release the applicants on anticipatory bail. 10. In the result, both the applications, which are sans merits, stand rejected. [A.V.POTDAR, J.] After the order is pronounced, counsel for applicants prayed for continuation of interim protection granted to the applicants. As the interim protection was in force during the pendancy of the application, the interim protection is extended for the period of 2 weeks. [A.V.POTDAR, J.] drp/criapln3726-09