1 Cri.A.4237.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4237 OF 2011 IN CRIMINAL APPEAL NO. 507 OF 2011 1. Sachin S/o Sukhdeo Dhapse, 2. Ashabai W/o Sukhdeo Dhapse, 3. Sukhdeo S/o Mahadeorao Dhapse R/o Post Colony, Parbhani, Ta. And District Parbhani. ...PETITIONER VERSUS The State of Maharashtra, ...RESPONDENTS ... Mr.V.D.Salunke,Advocate for Applicants. Mr.N.H.Borade, A.P.P. for respondents. ... CORAM: U.D.SALVI, J. DATE : 17TH OCTOBER, 2011 PER COURT : . Heard. Perused the application and record. 2. The applicants-accused, husband, mother-in- law and father-in-law of the deceased Pooja have been convicted of the offences punishable under sections 498-A and 306 read with section 34 of the 2 Cri.A.4237.11 Indian Penal code and sentenced to suffer rigorous imprisonment for two and seven years each, on respective counts and to pay total fine of Rs. 1500/-, by the learned Additional Sessions Judge-3 Parbhani, in Sessions Case No.25 of 2010 on 09.09.2011. On admission of the appeal against the said judgment and order of conviction the applicants have moved the present application for grant of bail. 3. The deceased Pooja was given in marriage to the applicant/accused No.1 Sachin on 25.02.2007. According to the prosecution, cash of Rs.40,000/-, two tolas gold and household utensils and articles were given as dowry to the applicant- accused No. 1, and the married life of the couple was smooth for initial period of five to six months and a female child Tejal was born out of the wedlock. However, according to the prosecution, marriage run into rough weather on account of persistent demands made by the applicant/accused No.1 for motorcycle, mobile phone, gold chain and cash of 3 Cri.A.4237.11 Rs.1,25,000/-for establishing Agro Pesticide shop; and parents of the applicant/accused No.1 i.e. other applicants supported the monetary demand made by the applicant/accused No.1; and as a result thereof the deceased Pooja committed suicide by hanging. 3. Inquest held over the body of the deceased Pooja revealed old scar marks of burn injures at four places on the right hand as well as on the left hand. Post mortem examination of the body of the deceased confirmed the existence of four round scar marks on the left forearm and one round scar mark on the right dorsum. According to Dr. Suryakant Deshmukh,(P.W.6) the Mortician, these were old scar marks of ante mortem injuries. 4. Initially, the crime under sections 302, 498(A) read with section 34 of the Indian Penal Code was registered at Crime No. 178 of 2009 with Kotwali Police Station, Parbhani, on the basis of complaint lodged by the father of the deceased, 4 Cri.A.4237.11 namely, Vitthal Adode at around 19.10.hours on 20.11.2009 the date on which Pooja hanged herself. On completion of investigation a Charge-sheet for commission of the offence under sections 306, 498- A read with section 34 of the Indian Penal Code was lodged against the applicants/accused. The case was committed to the Court of Session in due course and charges under sections 498-A and 306 read with section 34 of the Indian Penal Code were framed on 22.06.2010. The applicants/accused pleaded not guilty. 5. Seven witnesses including parents of the deceased were examined to substantiate the charges. Learned trial Court believed the testimonies of the parents of the deceased Pooja and convicted the applicants/accused as aforesaid. 6. Mr. Salunke, learned Advocate for the applicants-accused submitted that except testimonies of the parents of the deceased Pooja there is nothing to suggest that the deceased 5 Cri.A.4237.11 Pooja was subjected to matrimonial cruelty and she had committed suicide as a result of it. According to him, the prosecution had not examined any independent witness particularly one Milind Ghusale, mediator to whom P.W.1 Vitthal Adode, father of the deceased Pooja had allegedly disclosed the fact of cruel treatment meeted out to her by the accused for extracting money and such other benefits from him. He pointed out from the testimonies of the parents of the deceased Pooja, namely, P.W.1 Vitthal Adode and P.W.2 Taramati that the allegations made were mainly against the applicant/accused No.1 and the applicants/accused Nos. 2 and 3 were dragged in on vague allegations. He argued that the testimonies of P.W.1-Vitthal and P.W.2-Tarmati if read in conjunction with medical evidence failed to suggest that scar marks allegedly caused by the applicants/accused by candle burn injuries were caused some 10 to 15 days prior to the demise of the deceased Pooja. In view of this, the applicants, who were on bail during the trial, 6 Cri.A.4237.11 without committing breach of any terms and condition stipulated therefor, deserve to be released on bail. 7. He further pointed out that little girl Tejal is compelled to be in the jail with applicants- accused as there is nobody to take her care outside the jail. 8. Learned APP for the respondent-State as regards applicant No.1/accused pointed out that there is evidence of his involvement in the crime and as such there can be no suspension of sentence awarded after considering the total evidence by the learned trial Court. He fairly conceded to grant the bail to the other accused i.e. Applicant Nos.2 and 3. 9. Role of Milind Ghusale in the present case as suggested by the applicants/accused is apparent from the evidence and yet he has not been examined by the prosecution. Except, P.W.1 Vitthal and P.W. 7 Cri.A.4237.11 2 Tarmati none have attributed culpability to the applicants/accused. P.W.3 Prayagbai, neighbouring resident with whom the deceased Pooja had left her daughter Tejal just prior to she committing suicide made no utterance regarding she having noticed any untoward thing or learnt from the deceased Pooja any such fact before she had committed suicide. 10. The complaint Exh.21 lodged by P.W.1 Vitthal reveals clear omissions regarding the burn injuries sustained by the deceased Pooja and the alleged instigation given by the parents of the applicants/accused. There are omissions apparent from his evidence regarding facts of beating and starvation of the deceased Pooja on account of non fulfillment of the alleged demand of money. 11. According to P.W.2 Taramati, the applicant/accused No.1 caused burn injuries to the deceased Pooja by means of candle some 10/12 days before the demise of Pooja and made monetary 8 Cri.A.4237.11 demand of Rs.1,25,000/- for procuring a job. However, her evidence reveals that the allegations, which she made were vague and contrary to her statement made before the police, particularly the statement Exh. 31 that the deceased was dissatisfied with the fact that she got unemployed husband. The Medical evidence fails to disclose that scar marks relating to ante- mortem injuries on the hands of the deceased Pooja were result of burns caused by burning candle some 10 to 15 days prior to the demise of the deceased Pooja. On the contrary, P.W.6 Dr. Suryakant Deshmukh deposed that scar marks were of old healed wound and in case a wound is caused in childhood its scar can last life long. He was unable to opine as to how these scar marks had occurred on the forearm and dorsum of the deceased Pooja. 12. All these if read together, reveals fair chances of success to the appellants in the present appeal. The appellants were on bail 9 Cri.A.4237.11 during trial and there is no history of misuse of liberty availed by them while on bail, therefore, there is no reason to deny the bail. Hence order: . The Applicants/accused shall be released on bail on P.R bond of Rs. 15,000/-(Rupees Fifteen Thousand) each with one or more sureties in like amount subject to following condition: (i) The applicants shall keep the police informed about their whereabouts from time to time. (ii) The applicants shall keep duly instructed Advocate present before this Court for conducting the present appeal from time to time. . The Criminal Application stands disposed off accordingly. Sd/- [ U.D.SALVI J.] MTK