1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.: 2736 OF 2008 Prakash S/o Shantilal Varma ... APPLICANT. VERSUS State of Maharashtra and others. ... RESPONDENTS. *** Mr. D. S. Ladda, Advocate for the Applicant. Mr. P.M.Shinde, A.P.P. for Respondent No.1. Mr. N. S. Ghanekar with Mrs. Warsha Ghanekar, Advocates for Respondent No.2. *** CRIMINAL APPLICATION NO.: 2782 The State of Maharashtra. ... APPLICANT VERSUS Sau. Indira W/o Rameshwar Warma ... RESPONDENT. *** Mr. P. M. Shinde, A.P.P. for the Applicant/ State. Mr. N. S. Ghanekar, Advocate for the Respondent. *** CRIMINAL APPLICATION NO.: 2783 OF 2008 The State of Maharashtra Versus Laxmikant Pannalal Kadel *** Mr. P. M. Shinde, A.P.P. for the Applicant/ State. Mr. N. S. Ghanekar, Advocate for the Respondent. *** CRIMINAL APPLICATION NO.: 2785 OF 2008 The State of Maharashtra. ... APPLICANT. VERSUS Ramdeo Pannalal Kadel ... RESPONDENT. *** Mr. P. M. Shinde, A.P.P. for the Applicant/ State. Mr. N. S. Ghanekar, Advocate for the Respondent. *** CRIMINAL APPLICATION NO.: 3026 OF 2008 2 The State of Maharashtra. ... APPLICANT. VERSUS Saraswati Pannalal Kadel ... RESPONDENT. *** Mr. P. M. Shinde, A.P.P. for the Applicant/ State. Mr. N. S. Ghanekar, Advocate for the Respondent. *** CORAM: K. U. CHANDIWAL, J. RESERVED ON: 31 JULY, 2009. PRONOUNCED ON: 3rd AUGUST, 2009. ORDER: 1. By application No. 2736 of 2008 original complainant seeks to cancel the bail granted to Ramdeo (husband of the deceased), Laxmikant (brother of Ramdev). The notices in Application No.2782 of 2008, moved on behalf of the State for cancellation of bail of Indira Rameshwar Warma are awaited. Hence, no orders on said application. The application No.2783 of 2008, 2785 of 2008 and 3026 of 2008 are by the State for cancellation of bail granted to Laxmikant, Ramdeo and Saraswati, respectively. 2. Chandarani, sister of the complainant, married to Ramdeo on 4th December, 1998. She was treated well for about a year and thereafter she suffered ill-treatment for some years since she could not conceive a child. Ultimately, she delivered a male child who is now 3-1/2 years old. The ill-treatment was result of the victim coming to parental house. However, she was sent on the intervention of uncle of Ramdeo. The husband Ramdeo was allegedly addicted to many bad vices. His intoxication became a regular schedule. It was advised, he should be sent for some rehabilitation centre to get rid of the addiction. It was in this scenario Chandrani was sent for cohabitation with Sunilkumar Soni. 3 3. On 15th March, 2008 Chandrani informed her brother to pay Rs.4.5 Lakhs to her husband Ramdeo as her brother has paid only Rs.50,000/- against the demand of Rs.5 Lakhs. She also conveyed that if the amount is not paid, in that event, the husband, mother-in-law, brother-in-law and sister-in-law Indira have threatened, they would do something worst to her life. Ramdeo's sister Indira has stationed at Sonai and she is instigating Ramdeo for such demand. Chandrani was hyped up due to the threats. The complainant's brother having received the message contacted Ramdeo on phone, expressed his inability to comply the demand, however, assured to arrange for maximum amount as per his capabilities and strength. However, Ramdeo threatened if the amount is not received within two days the results would follow with Chandarani. 4. On 17th March, 2008 Chandarani died due to deep burns while at matrimonial house at Sonai. The matter was tried to be hushed up by the husband and other relatives. The police was playing a dubious role as the inquest drawn by police officer was contrary to the injuries noticed by the team of medical officers at Government Medical Hospital at Aurangabad. Consequently, a team of five doctors was required to perform atopsy on the deceased wherein they noticed that there was ante-mortem head injury over the dead body, she had linet undisplaced fracture over right middle cranial fossa over tequrrotum plate obliquely placed 2.5 cm in size. Linet undisplaced fracture over left middle cranial fossa over tequttotum plate obliquely placed of size 3 cms. Before carrying such atopsy the team had in presence of the investigator visited the room in question and during the Panchanama various incriminating items were found which were not referred by the investigator during earlier Panchanama drawn immediately after the 4 incident, though the room was under seal of the investigator. 5. Statements of the witnesses residing in the vicinity were recorded by the investigator in which Kiransing Chandel, Ranjit Jadhav showed behaviour of the accused Ramdeo and his family members, though Chandarani was engulfed in flames at the third floor room, however, his mother Saraswatibai, the husband Ramdeo and Laxmikant, all were sitting in the hall showing total unconcern and indeed Kiransing saw the husband coming downward from the stairs. On being inquired about the fumes coming from the room, he disclosed that Chandarani is burning. The room door was open. At the instance of the accused Ramdeo, Pradip alias Balu Chopda also rushed since he received such mobile. He extinguished the fire. F.I.R. with the Police of Sonai Police Station on 18th March, 2008 was lodged vide Crime No.I-36 of 2008 for offence under section 302, 498-A read with 34 of Indian Penal Code against Ramdeo, his mother, brother, Laxmikant and sister Indira. During the course of inquiry, police officer also recorded statement of the child witnesses on 31st March, 2008 who gave his version in few lines in Marwadi which was translated in Marathi in following terms: " आईलापपपावदादीनेकाडीनेचटकािदलातेथेकाकाजीहोते, वमलाहकलूनिदले, दारलावले". आईrefers to Chandarani, पपपा to Ramdeo दादीto Saraswati and काकाजीto Laxmikant. 6. The F.I.R. led the police to put the accused Ramdeo in custody on 18th March, 2008. Laxmikant surrendered to the police on 8th June, 2008 owing to rejection of anticipatory bail application. 5 7. The accused contended death of Chandarani was a suicidal and they deserved release on bail since charge sheet is filed on 12th June, 2008. 8. The learned Judge considering documentary evidence, by order dated 9th July, 2008, directed release of the accused persons on furnishing surety in the sum of Rs.25,000/-. It is this order of bail which is assailed by the State as well as the aggrieved complainant - brother of the deceased. 9. The counsel and learned A.P.P. took me thoroughly to the order of learned Additional Sessions Judge to point the so called perversity therein and how the learned Judge did not consider the statements of the witnesses in proper perspective. The wild surmises of the learned Judge while dealing with the statement of child witness were also highlighted in depth. 10. In support of the contentions from the complainant reliance was placed to the judgment in the matter of "State of Maharashtra V/s Anand Chintaman Dighe" [AIR 1991 SC 1603], "R. Rathinam V/s The State and another" [AIR 2000 SC 1851] and "Puran V/s Rambilas and another" [AIR 2001 SC 2023 (1). The matter of Puran relates to bride burning. In said case, the learned Judge neglected the nature of injuries, the material relating to demand of dowry and other circumstances of the statements wich found the Lordships that it was not a fit case for granting bail. Lordships observed, cancellation of bail by High Court can be said to be supported by cogent reasons. 11. The counsel for the accused respondent would argue that the child Ganesh, after the incident, was taken by the complainant and consequently the statement of the child dated 31st March, 2008 could be said to be influenced by tutoring or impressing the child to inculpate the accused. He further contended that statement 6 of Sangita Laxmanikant, wife of Respondent, was considered by the learned Judge. He informed, since charge sheet is filed there are no flouting of conditions of bail, the accused/ respondents have not protracted the trial. Consequently, the order need not be interfered with. 12. It is well recognised that the Court exercising powers under section 439 (2) of the Criminal Procedure Code should be slow since the liberty bestowed to a suspect is to be curbed which he has already enjoyed. However, as has been said by the Apex Court, where ignoring material and evidence on record a perverse order granting bail is passed in a heinous crime of the nature like bride burning and that too without giving any reasons, such an order would be against principles of law. Interest of justice would also require that such a perverse order be set aside and bail be cancelled. The present order fits in the bracket of such perversity and simply needs to be censured. 13. The observation of the learned Judge to criticise the statement of the child witness of he not stating that accused persons poured the kerosene on the person of the deceased and then set her on fire and hence the statement of the child does not support on the point that "the accused persons first assaulted the deceased and thereafter poured kerosene on person of deceased and set her on fire" are definitely wild conjectures of the learned Judge as the learned Judge did not consider, it was a son of 3-1/2 years old who could not be expected to be so meticulous and accurate in his narration as to the prior assault or dousing kerosene on the person of his mother. It was a brain child which saw ignition of his mother, it has reflected in his immediate words giving maximum message. This should have been considered in the proper tone in the light of the post-mortem notes and 7 the Panchanamas drawn on 17th March, 2008 and 18th March, 2008. 14. The learned Judge did refer about the postmortem report but failed to coin it in the right direction that it could be a case of assault with premeditation and then set the deceased afire. No cogent reasons, at-least prima facie, could be seen to demonstrate that victim had a fall in the room from a hight and suffered the ante-mortem injuries. Skeeping of these details warrants interference. 15. The learned Judge though was conscious that there were statements of three witnesses, first in time, did not bother to scan them to arrive to any conclusion. He simply contended "from the statements of the witnesses it appears that the supporting witnesses are from Aurangabad and they are none else but the parents and brothers of the deceased, therefore the question of threatening or tampering the evidence does not arise. The statements of the witnesses did not indicate that the accused persons with a common intention committed the murder." The learned Judge should have given a thought that three witnesses referred herein before i.e. Ranjit Jadhav, Kiran Chandel and Pradip alias Balu Chopada wre from village Sonai, all are well acquanted to the accused Ramdeo and even having friendly relations. Their statements should have been scanned in the logical legal manner at-least at prima facie stage. The learned Judge observed, "from the material on record I noticed that the evidence on the point of actual murder is somewhat shaky. It is pertinent to note that the prosecution case mainly rests on circumstantial evidence." These observations are arbitrary in nature, display that the learned Judge did not bother to scan statement of above three witnesses and evaluate them even to look to the conduct of the accused immediate post incident. Though it is expected that the learned Judge should not 8 have ventured to discuss the ultimate merits or demerits of the evidence collected against the accused persons, however, it is to be seen, giving reasons is different from discussing merits or demerits. At the stage of granting bail a detail examination of evidence and elaborate documentation of the merits of the case is not to be undertaken. But at-least the statement should have been read logically. However, the learned Judge has virtually swept in shaky manner to pass the order of releasing the accused on bail. This follows that he has ignored the material and evidence on record and the unjustified order needs interference. Hence, order. 16. The applications are allowed except Criminal Application No.2782 of 2008 [The State of Maharashtra V/s Sau. Indira W/o Rameshwar Warma]. The accused/ Respondents to surrender themselves to custody up to 10th of August, 2009. [K. U. CHANDIWAL, J.] Dated:03/08/2009. ans/2736