1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application [BA] No. 290 of 2011. (Atul S/o. Madhukar Gavhal Vs. State of Maharashtra) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S. V. Sirpurkar, Advocate for the applicant Mr. N. R. Rode, APP for the State/non-applicant CORAM : M.N. GILANI, J. DATE : 22 nd JUNE, 2011. Heard. The applicant Atul S/o. Madhukar Gavhal has applied for releasing him on bail against whom offence bearing Crime No. 2/2011 for the offences punishable under Sections 302, 498(A), 201 read with Section 34 of the Indian Penal Code, registered at Police Station Hiwarkhed, Tahsil Khamgaon, District Buldhana. Komal, the daughter of one Dilip Lelekar resident of Village Karodi, Tahsil Akot, District Akola, had married the applicant on 11/12/2010. After marriage she started residing with the applicant and her in-laws in Village Mohana Mandwa. The applicant has a sister by name Jyoti. One Abid, resident of adjoining village, was on visiting terms with the family of the applicant. This Abid had illicit relations with Jyoti, who is a divorcee. This came to the knowledge of Komal. She divulged this fact to the applicant and her in-laws. They were annoyed with Komal. Because of this, the in-laws started making a demand of motorcycle from the parents of Komal by saying that this was promised during the marriage. On 06/01/2011, Komal and the applicant had come to village Karodi and stayed in the house of complainant Dilip Lelekar. It is the case of prosecution that Dilip Lelekar-father of Komal, could arrange for one motorcycle and handed it over to the applicant. On 07/01/2011 at 01:30 p.m. the applicant and Komal left village Karodi 2 for going to village Mohana Mandwa. While leaving, they had informed that they would make night halt in the house of one Mohan Thombre, resident of Khamgaon. He is related to the applicant. At about 04:30 p.m., they reached Khamgaon and at about 5:30 p.m. they left his house on motorcycle. In the night, Dilip Lelekar received telephone call from his relations that something was wrong as Komal had not reached to the house. On the next morning, he lodged missing report. The motorcycle, odhni (scarp) and one chappal were found at the dam site of Torna river. On 11/01/2011, dead body of Komal was taken out of the water. The postmortem examination reveals that her death was due to drowning. Learned A.P.P. submitted reply and contended that involvement of the applicant for the offence punishable under Section 302 of Indian Penal Code is made out. He, therefore, supported the order passed by learned Additional Sessions Judge rejecting the bail application of the applicant. Learned counsel for the applicant raised many issues. According to him, no injuries were found on the person of deceased. Therefore, the story unfolded in the F.I.R. that she was firstly done to death and, therefore, her dead body was thrown in the water is unacceptable. According to him, the applicant was in the hospital because he had sustained injuries in a bid to save Komal. He is completely innocent. Death of Komal is not homicidal. He, therefore, prayed for releasing the applicant on bail. The prosecution has succeeded in collecting the evidence to point out that in the night intervening 07/01/2011 and 08/01/2011, the parents of Komal received message about non reaching of Komal to her matrimonial house in village Mohana Mandwa. Therefore, her father and his friends reached the village Mohana Mandwa. They saw the applicant lying on the cot and two other co-accused sitting by his side. Those two accused informed them that the applicant was brought from the dam site. In turn, the party, which came to Mohana Mandwa, went to dam site and found motorcycle of the applicant, 3 odhni (scarp) lying there. There is other set of witnesses of village Mohana Mandwa, who had been to the house of applicant at about 11:00 p.m. to 11:30 p.m. and found the applicant lying on the cot and other two co-accused sitting by his side. They were informed that the applicant was brought from the dam site. The next set of witnesses state that the applicant and Komal were in Khamgaon till 8:45 p.m. Although, they had left the house of Mohan Thombre at 5:30 p.m. for going to village Mohana Mandwa, instead of going to Mohana Mandwa, they went to one garment shop and thereafter to Cinema Hall. At about 8:45 p.m., they came out of the Cinema Hall. There are witnesses who saw the couple going on motorcycle at about 9:00 p.m. as well as 9:45 p.m. The call register of the mobile phone of the applicant shows that on 07/01/2011 he had called 9503935853 at about 10:10 p.m. and he had received the call at 10:15 p.m. from phone no. 9730803840. That means, till 10:15 p.m. he was all right. He was seen in the village in his house at about 11:00 p.m. to 11:30 p.m. The motorcycle was found at the dam site. Odhni (scarp) and one chappal were also found on the dam site. With the help of sniffer dog, other chappal was taken out of water. The accused was arrested on 11/01/2011 in the early morning at 05:00 a.m. He had shown the actual spot of lying of dead body and accordingly the search was taken and body could be fished out. Learned Additional Sessions Judge, while refuting the allegations, observed that, 'Advocate Shri Joshi submitted that the applicant Atul has not committed any offence as alleged against him. He submits that while going to Mohana Mandava there was quarrel in between the applicant and deceased Komal and Komal jumped in the dam water constructed on Torna river and therefore, the applicant had also jumped to save his wife. However, the defence set out by the applicant cannot be considered while deciding bail application. Had it been a fact that Komal had jumped into the water and the applicant had tried to save her then in that case he would have immediately informed about it to her parents or to the police. On the contrary, the statements 4 of the witnesses do show that applicant Atul gave evasive replies when questioned to him in respect of whereabouts of Komal and he had also stated that he does not know where Komal has gone. Prima facie there is reason to believe that the applicant Atul who was the custodian of his wife Komal has committed murder of his wife and thrown the dead body in the water. The circumstances on record do point finger at the applicant Atul of his involvement in commission of the alleged offences'. I am in agreement with the observations made by learned Sessions Judge. The circumstances point out that the motorcycle was stopped at the dam site. The chappal and odhni (scarp) found on the dam site and the subsequent conduct of the applicant appear consistent with the theory of the prosecution that deceased must have been thrown in the water. In such circumstances, there may not be injury on the person of deceased. There is no need to undertake the detailed examination of the evidence at this stage. There being no merit in this application, it is rejected. JUDGE *Sdw