1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NOS. 3356/2009 ( Sau. Vimala Sahadeo Bhatkar .vs. State of Mah. ) with Criminal Application No.3357/2009 ( Anil Sahadeo Bhatkar .vs. State of Mah. ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. A.B. Mirza, Advocate for Applicants Mr. A.D. Sonak, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : NOVEMBER 10, 2009 Heard both sides at length. The prayer for a direction under Section 438 of Cr.P.C. and the prayer for a bail is made by respective applicants in aforesaid applications preferred in connection with Crime No. 79 of 2009 registered with Hiwarkhed Police Station for commission of offences under sections 498-A, 307 read with Section 34 of IPC. The said crime was registered at the said Police Station on 7.9.2009 in respect of an incident which had occurred on 13.5.2009 in which one Jyoti Sudhakar Bhatkar and the complainant Mamta Anil Bhatkar had sustained burn injuries and as a result of injuries sustained Jyoti had expired on 19.5.2009. The applicant in Criminal Application No. 3356 of 2009 is mother in law of complainant Mamta 2 and so also deceased Jyoti, while the applicant in Criminal Application No. 3357/2009 is husband of complainant Mamta. In addition to these two applicants, four more co-accused are alleged to be involved in the said crime, but out of them accused Sudhakar and Sahadeo Bhatkar are granted bail vide order dated 24.9.2009 while accused Gangadhar Dondal and Balu Bhatkar vide order dated 24.9.2009 are directed to be released on bail in event of their arrest. The learned counsel for the applicant has urged that there is inordinate delay in lodging FIR inasmuch as the same has been lodged after a period of about 4 ½ months after occurrence of an incident now alleged in FIR. He further urged that reasons advanced in the FIR for occurring of delay is neither natural nor probable and being far from convincing and giving rise to the reasonable inference of FIR being the same being lodged as an afterthought for false implication for oblique reasons. He has urged that during the course of the inquiry made by the Police regarding the death of Jyoti, her dying declaration and so also the statement of complainant Mamta were recorded. The matters from the same give severe jolt to the matter now alleged in the FIR creating grave doubts about the same. The same is apparent as the said statements recorded in the month of May, 2009 reveals Jyoti having received accidental burn injuries in a process of preparing tea and Mamta having received burn injuries while rushing for rescuing her in total contrast to theory alleged in the FIR of the Applicant in Application No. 3357/2009 3 and his other relatives having attempted to burn complainant by pouring kerosene on her person and Jyoti having received injuries while rescuing her. He urged that fact of Jyoti having received much more burn injuries than injuries received by Mamta as reflected from the medical evidence collected by the prosecution echoes about theory of accidental burn advanced in the earlier statement being true and contrary theory now alleged in FIR being false. The learned counsel urged that prima facie no credence can be given for such a matter belatedly alleged in the FIR lodged after after lapse of 4 ½ months or at least the same cannot be regarded as a material prima facie sufficient for showing involvement of both the applicants in commission of offence punishable with death and/or imprisonment for life. He further urged that taking into consideration prima facie other matters alleged in the FIR and even the other material collected by the Investigating Agency during the course of investigation and the same not transcending beyond complainant being treated with cruelty for bringing an amount of Rs.50,000/- from her parents and even accepting the same at the face value, still the same is insufficient to prima facie establish nexus of the applicant in commission of offence punishable with death or imprisonment of life. The learned counsel thus urged that taking into consideration the probability of hight degree of false implication, prayers in both the applications deserve to be accepted or at least having regard to the fact that applicant in Criminal Application No. 3356 of 2009 is a 4 woman of old age. The application is opposed by the learned APP by contending that both the applicants are accused for commission of serious offences. He has further urged that role played by them are supported from the FIR. He states that both of them being accused for commission of serious offences and investigation being not complete, the prayers in the application should not be accepted as the same may result in hampering the progress of ongoing investigation. After giving thoughtful consideration to the matters revealed from the case diary perused, prima facie there appears to be substance in the submission canvassed by the learned counsel for the applicants i.e. there being inordinate delay in lodging FIR and/or totally contradictory case being made after a period of about 4 ½ months and about the character of the material collected by the investigating agency. Having regarding to the said feature and taking into consideration the settled criteria for issuing direction under Section 438 of Cr.P.C. and so also for a bail under Section 439 of Cr.P.C. and even accepting that seriousness of crime taken place is always required to be taken into consideration, still only because of the same rejecting prayers in the application would be defeating the purpose for which the said provisions are made. Such a conclusion is inevitable after taking into consideration prima facie regarding the character of material collected by the prosecution and possibility of false implication being altogether not ruled out from the same. The same is also apparent in view of inability of the prosecution to 5 collect any further independent material beyond the matters stated in the FIR in spite of the investigation for a period of about 2 months or more. Thus having regard to all the relevant aspects including age of the applicant in Criminal Application No. 3356 of 2009, both the applicants have made out a case for upholding the prayers made in the respective applications. However, taking into consideration seriousness of accusation made, investigation being said to be incomplete, it will be necessary to impose certain conditions for ensuring that the investigating officer gets an opportunity to make full investigation of the matter reported. Hence the order:- (i) The Investigating Officer of Crime No. 79/2009 of Hiwarkhed Police Station is hereby directed that in the event of arrest of the applicant Sou. Vimala Sahadeo Bhatkar in connection with the said crime, she shall be forthwith released on bail on furnishing a P.R. Bond in a sum of Rs.25,000/- with one or two sureties in like amount and subject to the conditions that said applicant (i) attending Hiwarkhed Police Station in connection with the investigation of the said crime everyday in between 9 a.m. and 12 noon for 4 days from the date of this order and thereafter within the said timings whenever called by the Investigating Officer; (ii) not indulging in any attempt to hamper with ongoing investigation in any manner or to tamper with evidence collected by the prosecution and (iii) not leaving the territorial limits of Akot tahsil save except for attending the Court, without prior permission of this Court. 6 (ii) Anil Sahadeo Bhatkar, applicant in Criminal Application No. 3357/2009 is hereby ordered to be released on bail on furnishing a P.R. Bond in the sum of Rs.50,000/- with one or more sureties in the like amount and subject to the conditions that said applicant (i) attending Hiwarkhed Police Station in connection with the investigation of the said crime everyday in between 9 a.m. and 12 noon for 4 days from the date of this order and thereafter within the said timings whenever called by the Investigating Officer; (ii) not indulging in any attempt to hamper with ongoing investigation in any manner or to tamper with evidence collected by the prosecution and (iii) not leaving the territorial limits of Akot tahsil save except for attending the Court, without prior permission of this Court. Both applications stand disposed of. JUDGE halwai