1 cri3446.10 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3446 OF 2010 Dnyaneshwar S/o Munjaji Deore APPLICANT -VERSUS- The State of Maharashtra RESPONDENT ......... Mr. P.R. Katneshwarkar, advocate for the applicant. Mr. B.J. Sonawane, A.P.P. for respondent. ........ WITH CRIMINAL APPLICATION NO. 4159 OF 2010 The State of Maharashtra APPLICANT -VERSUS- Vishwanath S/o Bajirao Deore and another RESPONDENTS ......... Mr. B.J. Sonawane, A.P.P. for applicant. Mr. P.R. Katneshwarkar, advocate for the respondent nos.1 and 2. ........ (CORAM : V.R.KINGAONKAR,J.) DATE : 1st December, 2010. PER COURT : 1. These are two applications arising out the same crime no. 42/2010 registered at Basmat Police Station (District Hingoli) for the offences punishable under Sections 302, 307 and 201 r/w 34 of the Indian Penal Code. 2 cri3446.10 2. The Criminal Application no. 3446 of 2010 is filed by applicant-Dnyaneshwar. He seeks regular bail under Section 439 of the Criminal Procedure Code. This application will be referred hereinafter as "Application No. I". The Criminal Application No. 4159/2010 is filed by the State for cancellation of bail granted by the Sessions Judge to Vishwanath Deore and Gopinath Deore, who are the uncles of applicant-Dnyaneshwar and that of deceased Ku. Alanka. This application will be referred hereinafter as "Application no. II". 3. Both the applications are heard together. 4. The deceased, by name, Alanka was the young and unmarried daughter of Munjaji and Arunabai Deore. Applicant- Dnyaneshwar is the step brother of deceased Alanka, whereas respondents-Vishwnath and Gopinath are the brothers of Munjaji Deore. The incident giving rise to the prosecution occurred on 18th March, 2010. It appears that injured Gopinath Khandale, a youth residing in the neighbourhood of said Munjaji Deore had developed intimacy with deceased Ku. Alanka. On 18th March, 2010, injured Gopinath clandestinely visited the residential house of said Munjaji Deore to meet deceased Ku. Alanka. He contacted her and while they were chitchatting in the house, Munjaji Deore 3 cri3446.10 was seen coming from outside of the room. Therefore, in the morning time, deceased Ku. Alanka asked injured Gopinath (paramour) to duck in that room. He concealed himself behind the gunny bags of grains. Thereafter, deceased Ku. Alanka left with her father, purportedly to attend the agricultural work in the field. She had put a lock to the house while leaving. Alanka returned home at about 11 a.m. with her father. She opened the lock of the house while her father was standing outside. Her father took meals in front portion of the house (corridor) and left the house. Her father told deceased Ku. Alanka that he was leaving for Basmat. Deceased Ku. Alanka climbed on the roof top of the room in which injured Gopinath (paramour) was concealing himself. She removed some of zinc sheets from the roof with a view to make available exit for the paramour after the members of the house would go away. Her step brother (applicant-Dnayneshwar) and his wife were in the adjacent room. Injured Gopinath heard that applicant-Dnyaneshwar and his wife were talking with each other in the adjacent room. However, all of a sudden, applicant- Dnyaneshwar entered that room while the zinc sheets were being removed by Ku. Alanka from the roof to create space for exit of the paramour. Allegedly, applicant-Dnyaneshwar noticed presence of injured Gopinath inside the room and immediately called his two uncles i.e. Vishwanath and Gopinath. They over powered injured- 4 cri3446.10 Gopinath Khandale and tied his legs and hands. They forcibly gagged his mouth by thrusting a handkerchief and thereafter took away Ku. Alanka in the adjacent room, which was being used by applicant-Dnyaneshwar. While under confinement, injured Gopinath Khandale (paramour) heard that mother of Ku. Alanka and her brother Santosh arrived at the place. They pleaded with applicant-Dnyanewshwar and both the uncles of Ku. Alanka to forgive her. Still, however, applicant-Dnyaneshwar and his two uncles were not in a mood to listen to the word of advise given by mother of deceased Ku. Alanka. All three of them were in hot mood to teach a lesson to Alanka for her act of such illicit relations with injured Gopinath Khandale. They repeatedly banged her head forcibly on the wall of room. After short while the cries of Ku. Alanka died down. Thereafter, applicant-Dnyaneshwar and his two uncles came to the room where injured Gopinath Khandale was confined. While the two uncles i.e. Gopinath Deore and Vishwanath Deore held injured Gopinath Khandale, after untying his legs, applicant-Dnyaneshwar dealt blows of an axe on his left thigh and hand thereby caused serious wounds to him. He tried to eliminate injured Gopinath Khandale. The injured became unconscious and was lateron shifted to Government Hospital at Basmat and thereafter to a private hospital at Nanded for treatment. In the meanwhile, applicant-Dnyaneshwar and both of 5 cri3446.10 his uncles hastily got removed the dead body of Ku. Alanka to their agricultural land and put it on fire. Thus, they burnt away her dead body. On basis of a report lodged by one Kisanrao Deore, who was local President of Tanta Mukti Samiti, Police geared up investigation. Applicant-Dnyaneshwar and his both uncles were arrested. Since the dead body of Ku. Alanka was burnt away, the remains of body were collected from the place of the agricultural land where it was found to have been set on fire. 5. The uncles of applicant-Dnyaneshwar were granted bail by the learned Sessions Judge vide order dated 20th July, 2010 whereas the application of applicant-Dnyaneshwar was rejected. The learned Sessions Judge held that it was only applicant-Dnyaneshwar who was allegedly holding an axe and brutally assaulted deceased Ku. Alanka in the relevant noon. The bail was granted to both the uncles of deceased Ku. Alanka on the ground that there was no weapon in their hands. No other reason was ascribed while granting bail to them. 6. Applicant-Dnyaneshwar has filed bail application on the ground that his involvement in the alleged offence is not based on any eye witness account. He further submits that there was no intention to eliminate deceased Ku. Alanka, who was his step 6 cri3446.10 sister, and may be that he was under spell of shock due to the revelation of the illicit relations. It is contended that the incident occurred at the spur of moment. It is further submitted that there is no reliable evidence to show that the death of Ku. Alanka was caused due to any axe blow. On these premises, applicant- Dnyaneshwar seeks bail. As against this, the cancellation of bail, granted to both the uncles of applicant-Dnyaneshwar and deceased Ku. Alanka, is sought for the reason that it was granted without due application of judicial mind. 7. Having heard learned counsel for applicant- Dnyaneshwar and both the respondents in Application No.II, and the learned A.P.P., and on consideration of the material gathered during the course of investigation, it is amply clear that the alleged incident is one of the "honour killing" in as much as applicant- Dnyaneshwar and his uncles were infuriated due to the illicit relations between deceased Ku. Alanka and injured Gopinath Khandale. There was no other motive for eliminating deceased Ku. Alanka. The incident occurred within the four corners of walls of the residential house of applicant-Dnyaneshwar and his uncles. It is but natural, therefore, that no independent witness could be available to notice the manner in which the incident occurred. The eye witness account of the incident is tendered by mother and 7 cri3446.10 minor brother of deceased Ku. Alanka. They are witnesses, who attempted to convince applicant-Dnyaneshwar and his uncles to pardon deceased Ku. Alanka for her so called fault of keeping illicit relations with injured Gopinath. Police statements of both these witnesses are not taken into consideration by the learned Sessions Judge while allowing the bail application of Gopinath Deore and Vishwanath Deore i.e. the uncles of deceased Ku. Alanka. One can not be oblivious of the fact that the presence of the paramour was noticed by applicant-Dnyaneshwar inside the room at about mid-day and thereafter he called his two uncles. All of them had tied down the hands and legs of the paramour and so also gagged his mouth by thrusting handkerchief inside his mouth. The mother and younger brother of deceased Ku. Alanka arrived at the place after about a couple of hours. Needless to say, it prima facie appears that there was sufficient time gap available for applicant- Dnyaneshwar and his uncles to cool down. It appears that they had continued to be in hot mood. They became berserk and continued to beat Alanka for hours together. The poor young girl, who might have been infatuated towards injured Gopinath Khandale, due to the young age and natural instincts, was not only slapped and manhandled but her head was continuously banged on the wall of nearby room till her cries had died down. This conduct of the assailants is inhuman and brutal. The bizarre 8 cri3446.10 nature of the incident resulting in to the death of Ku. Alanka is not considered by the learned Sessions Judge. Mere fact that nobody referred possession of any arms with the uncles of deceased Ku. Alanka could not be the sole ground to grant bail to them. It is completely overlooked that both the uncles and applicant- Dnyaneshwar were having common intention because they had tied down the hands and legs of her paramour and thereafter had together pulled out Ku. Alanka from the room and had forcibly pushed her in the nearby room. Initially, her continuous cries after banging of head on the nearby wall were heard by injured Gopinath Khandale. The police statement of Arunabai, who is mother of deceased Ku. Alanka, prima facie, indicates that deceased Alanka was found lying in pool of blood in nearby room and there was swelling on her forehead. The mother noticed that Ku. Alanka had sustained haemotoma on the forehead with blackening of skin. Needless to say that deceased Ku. Alanka was prima facie beaten up mercilessly and afterwords might have been assaulted by means of an axe. The matter does not stop here. The uncles of deceased Ku. Alanka and applicant-Dnyaneshwar, together, shifted her to the place where the dead body was burnt away. Her death was not informed to the police. 8. The medico legal certificate prima facie shows that the 9 cri3446.10 paramour i.e. Gopinath Khandale was injured due to the assault mounted on him by applicant-Dnyaneshwar by means of an axe. All these aspects are completely ignored by the learned Sessions Judge while granting bail application of Vishwanath and Gopinath Deore, brothers. It is pertinent to notice that the main witnesses in the Sessions Case are the mother and younger brother of deceased Ku. Alanka. Obviously, if the uncles of deceased Ku. Alanka are let free on bail, notwithstanding the condition that they are prevented from entering the village, the trial is likely to be influenced. The presence of the uncles of deceased Ku. Alanka in the premises of the Court, when the trial would be set on for the purpose of final hearing, may cause influence on the witnesses including not only the mother and brother of the deceased Ku. Alanka but other villagers as well as injured Gopinath Khandale. The learned Sessions Judge failed to discuss the relevant aspects including the likelihood of influence which may be caused by presence of uncles of deceased Ku. Alanka outside the Sessions Court and likelihood of unfair trial due to such grant of bail to them. As stated before, since the incident is prima facie outcome of "honour killing" and did occur within the four corners of the residential house of the deceased, it was expected that more serious thought should have been given by the learned Judge on this aspect which emerges from the collected material. The charge 10 cri3446.10 sheet was available for the perusal of the learned Sessions Judge when the bail application was granted in favour of Vishwanath and Gopinath Deore, brothers. The learned Sessions Judge noticed that earlier bail application bearing Criminal Application No. 99/2010 filed by them was rejected by the Court since the investigation was in progress. It is obvious, therefore, that the second application could be granted only and only if there was substantial change in the circumstance, which could be brought on the surface of record after filing of the charge sheet. Unless there was reason to notice substantial change in the circumstances, the learned Sessions Judge had no power to grant second bail application and that too, without assigning tangible and valid reasons. 9. Under these circumstances, it will have to be said that the second bail application is granted by the learned Sessions Judge without due application of judicial mind and without considering the parameters required to be applied while granting of second bail application. 10. Faced with this difficulty, learned Advocate Mr. P.R. Katneshwarkar strenuously argued that the cancellation of bail is required to be avoided unless there is some important material on 11 cri3446.10 record to assume that the accused persons are likely to tamper with the witness and there was any threat given by them to the complainant. He would submit that the granting of bail to Vishwanath and Gopinath Deore, brothers is rather sustainable in view of the fact that there was no complaint made by any of the witnesses about any act of causing influence by them. He invited my attention to the certain observations made in "Dolat Ram V/s State of Haryana" {1995(1)SCC 349}, "Ram Babu Tiwari V/s State of M.P. & anr." {2009(6) Scale 317}, "Nityanand Rai V/s State of Bihar" {2005(4) SCC 178: 2005 AIR (SCW) 2034}. The Apex Court in Ram Bhau Tiwari (supra) held that parameters for grant of bail and cancellation of bail are different. At the same time, it is observed that the bail can be cancelled if the trial Court while granting bail acts on irrelevant materials or takes into account irrelevant materials. It is held in case of "Kalyan Chandra Sarkar V/s Rajesh Ranjan @ Pappu Yadav and Anr" {2004(7) SCC 528" that any order devoid of appropriate reasons would suffer from non-application of mind. It is further observed by the Apex Court that while granting bail, the Court ought to have considered, amongst other circumstances and the factors mentioned below : (a) The nature of accusation of tampering and the severity of punishment in case of conviction and the nature of supporting evidence. 12 cri3446.10 (b) Reasonable apprehension of tampering with the witness or apprehension of threat to the complainant. (c) Prima facie satisfaction of the Court in support of the charge. 11. It is important to notice that the F.I.R. is lodged by the then President of Tanta Mukti Samiti of the village. The main witnesses are closely related to the accused persons. There is no need to find out whether actually the respondents-Vishwanath and Gopinath Deore, brothers gave threat to any one after they are released. What is required to be examined is whether, there is reasonable apprehension of their influence over the evidence. So also, the severity of punishment in case of conviction and the nature of supporting evidence are the factors which ought to have been considered by the learned Sessions Judge. The impugned order rendered by the learned Sessions Judge, granting bail to Vishwanath and Gopinath Deore, brothers is unsupported by any tangible reasons nor the above criteria are duly considered and as such, it will have to be said that the bail granted to them is without due application of judicial mind and it has been granted on basis of irrelevant material, namely, that they were not armed with any weapons. There is prima facie evidence to infer that applicant- Dnyaneshwar committed ghastly act of homicide of his step sister 13 cri3446.10 inside the residential house with the help of his uncles. 12. Taking overall view of the matter, the application filed by applicant-Dnyaneshwar is dismissed. The Application No.II filed by the State for cancellation of bail is granted. The impugned bail order rendered by the Sessions Judge is set aside and both the respondents i.e. Vishwanath and Gopinath Deore, brothers are directed to be immediately taken in custody by issuing arrest warrants, if they will not surrender within a period of two weeks. (V.R.KINGAONKAR) JUDGE gas/cri3446.10