1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR Criminal Application (ABA) No.89/2011 ( Diwakar s/o Kalilcharan Jha and others ..Vs.. State of Maharashtra, through P.S.O., M.I.D.C. (Hingna) Police Station, Nagpur and others ) - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Office Notes, Office Memoranda of Coram, Court's or Judge's orders appearances, Court's orders of directions and Registrar's orders - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Mr. S.A. Ashirgade, Adv. for applicants. Mr. N.R. Rode, Adv. for respondent/State. Mr. S.A. Jaiswal, Adv. for complainant. CORAM : M.N. GILANI J. Reserved on : 10.6.2 011 . Pronounced on : 14.6.2011. 1. Applicant no.1 to 3, against whom offences bearing Crime No.3/2011, under section 302, 304, 304-B, 498-A read with 34 of the Indian Penal Code, are registered at the police station M.I.D.C. (Hingna), Nagpur, have filed this application for grant of anticipatory bail. 2. On 13/3/2008, Jyoti d/o Diwakar Jha married with the applicant no.1. They both started residing in Rajiv Nagar, Hingna Road, Nagpur. The applicant no.2 is the elder brother of applicant no.1 and applicant no.3 is their mother. It is the case of prosecution that after marriage the applicants were making unlawful demands for purchase of the house, 2 for obtaining electric connection etc. For non-fulfillment of demands, she was being ill-treated. On 24/5/2010, Jyoti was taken to Psychiatrists. The Psychiatrist had prescribed her Lacalm and Oleanz tablets. On 26/5/2010, in the morning, the parents of Jyoti wanted to talk to her on telephone but the applicant no.1 pretended that she was sleeping after taking medicine. On the same day, at about 5.30 p.m., the parents of the deceased were informed by the applicant no.1 that Jyoti was suffering from loose motion and omitting and she was required to be taken to the hospital. At 9.45 p.m., the hospital authorities informed the P.I., Sakkardara police station, Nagpur, that a woman by name Jyoti d/o Diwakar Jha when brought to the hospital was already dead. 3. On 27/5/2010, inquest was held over the dead body of Jyoti by M.I.D.C. (Hingna) Police and it was sent for postmortem examination. During postmortem examination, the following surface wound was noticed :- “ Crater formation present over right hand over dorsum, just proximal to the base of knuckle of index finger, relatively circular of diameter 1.3 cm with base shows partial charring with blackish brown discolouration with everted margins surrounding the crater with a zone of pale halo surrounding the lesion with a line of hyperaemia 3 surrounding the pate ancola suggestive of entry wound of electrocution.” The injuries were found to be ante mortem. On internal examination brain, pleura, both lungs, pericardium, oesophagus, small intestine, liver, pancreas, kidneys were found congested. The viscera was preserved. Impending receipt of the report of Chemical Analyzer opinion as to cause of death was reserved. 4. On 28/5/2010, the Chemical Analyzer, Regional Forensic Science Laboratory, Nagpur, opined that no poison was found in the viscera. On 31/7/2010, the Chemical Analyzer of Forensic Science Laboratory, Mumbai, after examining skin piece (where entry of electrocution was found), observed “blackening on skin tissue”. On 25/3/2011, the Department of Forensic Medicine, Government Medical College, Nagpur, examined autopsy report, C.A. report dated 28/9/2010 and the C.A. report of skin dated 31/7/2010 and finally opined that “autopsy findings are consistent with the death due to electrocution.” 5. Despite number of complaints lodged by the father of the deceased, no action was taken. Therefore, he approached the Court of Judicial Magistrate, First Class, 4 Nagpur with a private complaint on 27/1/2011. Learned Magistrate, First Class, directed investigation into the allegations made in the complaint under section 156(3) of the Criminal Procedure Code. Thereafter, offences came to be registered. Apprehending arrest, the applicant no.1 to 3 approached the Court of Sessions, Nagpur. Learned Additional Sessions Judge, Nagpur by his order dated 9/3/2011 rejected the application by observing that offences registered against the accused persons are of serious nature and custodial interrogation is necessary. He further observed that death of the deceased was within 7 years of the marriage and it had occurred otherwise than under normal circumstances. 6. Learned counsel for the applicants vehemently contended that the applicants have been falsely involved in the offence. On 26/5/2010, the applicant no.1 was not at home and he had gone to give his statement to the crime branch in connection with some other incident. On 26/5/2010, in the afternoon, he received call about ill-health of the deceased and hence he rushed there who was omitting and had loose motions. This was due to excessive consumption of ante-depression medicines. He took her to the hospital in an auto rikshaw. Unfortunately, during 5 treatment she died. He insisted upon the police to conduct postmortem examination which was accordingly conducted on the next day. In February 2011, father of the deceased, lodged false complaint case in the Court of Judicial Magistrate, First Class, Nagpur. On 12/2/2011, the F.I.R. Came to be lodged. It is his case that the deceased died because of over consumption of ante-depression medicines. The theory of death due to electrocution is after thought and is not supported by material collected during investigation. This Court granted ad-interim anticipatory bail to all the three applicants and since then they had been attending the police station. In this view of the matter, the ad-interim bail order dated 14/3/2011 may be confirmed, he urged. He placed reliance on the following observations of the Supreme Court in the case of Siddharam Satlingappa Mhetre V/s. State of Maharashtra and others reported in (2011) 1 SCC 694 “ “In cases where court is of considered view that accused has joined investigation and he is fully cooperating with the investigating agency and is not likely to abscond, in that event, custodial interrogation should be avoided, and anticipatory bail should be granted, which after hearing Public Prosecutor, should ordinarily be continued till end of trial – Criminal Procedure Code, 1973, S.438”. Learned counsel for the applicants further placed 6 reliance upon the decision of Division Bench of this Court in Palniswmy Vaiyapuri, original accused V/s. State reported in A.I.R. 1968 Bombay 127 (V 55 C 22) which was a confirmation case. According to learned counsel for the applicants, opinion of the Expert must be supported by reasons. 7. Learned A.P.P. appearing for the respondent/State seriously disputed the right of the applicants to seek directions under section 438 of the Criminal Procedure Code. It is his contention that the story put forth by the applicants that the deceased died because of over consumption of ante-depression medicines has been proved false and with the receipt of the report from Department of Forensic Medicine prima facie it is established that Jyoti died due to electrocution. Admittedly, the accused no.1 when reached at home Jyoti was alive. This prima facie shows that he is the only person who can explain as to under what circumstances Jyoti died. 8. In Siddharam Satlingappa Mhetre V/s. State of Maharashtra and others (supra), the Supreme Court observed that :- “ Discretion vested in the court in all matters 7 should be exercised with care and circumspection depending upon the facts and circumstances justifying its exercise. Similarly, the discretion vested with the court under Section 438 CrPC should also be exercised with caution and prudence. It is unnecessary to travel beyond it and subject the wide power and discretion conferred by the legislature to a rigorous code of self-imposed limitations. No inflexible guidelines or straitjacket formula can be provided for grant or refusal of anticipatory bail because all circumstances and situations of future cannot be clearly visualised for the grant or refusal of anticipatory bail. In consonance with the legislative intention the grant or refusal of anticipatory bail should necessarily depend on the facts and circumstances of each case. This is the case where the applicant no.1 has come with a case that on 26/5/2010 at 5.45 p.m. he received a call from applicant no.3 about ill-health of the deceased. Accordingly, the father of the deceased was also informed. The father of the deceased had told him to carry her to E.S.I.S. Hospital. After reaching home he found deceased unconscious and had omitting and also had loose motions. He, therefore, took her to E.S.I.S. Hospital in a auto rickshaw. The applicant no.2 was following him on motorcycle. On reaching to the hospital the doctor tried to treat her but 8 during treatment she was found dead. 9. The presence of wound, which is possible by electrocution, cannot be brushed aside, at this stage. Further applicants' case that there was no external wound and the findings on internal examination are inconsistent with death due to electrocution cannot weigh in their favour to dislodge the report of the Department of Forensic Medicine that death was caused due to electrocution. It is well settled principle that the detailed examination of the evidence and documentation of the merits of the case is to be avoided while deciding the bail application. The perusal of the case diary shows that the Medical Officer E.S.I.S. Hospital, Nagpur informed the P.I. Sakkardara, Nagpur as well as to C.M.O., Government Medical College and Hospital, Nagpur, that a lady by name Jyoti when brought to the hospital was found dead. Delay in the matter of investigation obviously can be attributed to the lethargy on the part of the investigating agency. Despite the mention of the surface wound in the postmortem report, the Investigation Officer, whosoever, was slept over the matter. It is only after the father of the deceased approached the Judicial Magistrate, First Class, Nagpur with a private complaint things started moving. Prior to that number of representations seems to have been made 9 by the father of the deceased to the various authorities but to no avail. The case diary further shows that on 15/4/2010 the applicant no.1 had assured in writting to the parents of the deceased that he would maintain and treat the deceased properly. Further, he had assured that henceforth he would not ill-treat her and in case of her illness he would provide her proper treatment. This prima facie shows that things were not well in the matrimonial life of the applicant and deceased. 10. The applicant no.1 to 3 have been charged with the offences punishable under sections 302, 304, 304-B, 498- A read with 34 of the Indian Penal Code. It seems that the role of applicant no.3 is not incriminating. It is stated in the application that after applicant no.1 and 2 received the call about ill-health, they rushed to the house and took her to the hospital. Along with applicant no.1 the involvement of applicant no.2 also appears to be there. Considering the nature and gravity of the offences as well as the chronology of the events that had taken place till the receipt of the final report from Department of Forensic Medicine and particularly the case put forth by the accused suggesting the cause of death, I am of the view that the applicant no.1 and 2 are not entitled for any relief under section 438 of the Criminal 10 Procedure Code. 11. Application, so far as it relates to applicant no.1 and 2, is rejected. The interim relief granted by this Court on 14/3/2011 in favour of applicant no.3 is confirmed subject to the condition that she shall attend the police station M.I.D.C. (Hingna) as and when called. JUDGE Tambaskar.