1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR CRIMINAL APPLICATION NO: 2789 /2009 ( Suresh Laxman Waware vs. State of Maharashtra ) Office Notes, Office Memorandum of Coram appearances, Court's orders of directions & Registrar's orders. Court's or Judges Order Mr H M Mohta, Adv. for applicant Mrs.S S Wandile, APP for respondent-State C ORAM : A.P. BHANGALE, J. DATED : 18th August, 2009. Heard learned counsel for the respective parties, at length. 2. By this application, the applicant is seeking grant of bail in connection with Crime No.2/2009 registered at Jalamb Police Station, District Buldana, for offence punishable under section 302 read with Section 34 of the Indian Penal Code. The complaint was initiated by Bhagwan Jagdeo Gawli, father of the victim. In the FIR itself, it appears that reference has been made to dying declaration which was orally made by the victim – Rukhma, who was lying in the river bed near Mahadeo Pindi in an injured condition and her hands were tied with coconut rope with foam oozing out from her mouth. The first informant was informed about the incident by one Kisan Rajaram Khawale. Rakhma had made oral dying declaration that Suresh Laxman Waware and Narendra Laxman Waware, both brothers caught hold of her hands, tied her hands and thereafter administered Rogar and Themet (insectisides) forcibly to the victim. As the victim had shouted, they ran away. The victim could not survive the incident and died on 8.1.2009 at about 6.00 a.m. It is also case of the prosecution that in the course of investigation, dying declaration was recorded before the Magistrate in which also the victim maintained that she was forcibly given the above-named two insecticides by the applicant and his brother – Narendra, after tying both her hands. 2 3. It is also the case of the prosecution that the above insecticides were purchased by the deceased herself on 6.1.2009 from village Bhendwal which was near village Kathora where the incident occurred. Thus, in the morning at about 11.00 a.m. she purchased the insecticides from Krishi Kendra of Bhendwal and returned back all alone. The applicant and his brother tied her hands and administered the poison forcibly to her that she was carrying. Thus, in view of the dying declaration and clear implication of the applicant and his brother on the basis of strong material collected during the course of investigation in the form of dying declaration as also the supporting material, such as post-mortem notes victim died due to Cardio retpiratory arrest,may be due to poisoning, the applicant is not entitled to bail. 4. Learned Advocate for the applicant contended that the applicant is in possession of certificate dated 5.1.2009 issued by Dr.Ashok Bhopale that the appliant - Suresh was advised treatment and rest during the period between 1.10.2008 and 6.1.2009, due to irritable bowel syndrome GERD with anxiety neurosis and that Doctor certified him physically and mentally fit with effect from 6.1.2009. 5. Learned APP stoutly objected the reliance upon the certificate on the ground that the statement of Doctor concerned has been recorded who stated that certificate was obtained on the ground that the applicant wanted to attend his duties on the basis of such a certificate which was issued by the Doctor in favour of the applicant. 6 Learned Advocate for the applicant also relied upon the ruling in Shivaji Maroti Wakde vs. State of Maharashtra reported in 1994 (3) Bom.C.R. Page 24. In that case, on the basis of theory of “last seen together” apart from the fact that prosecution had nothing to show any other evidence, the benefit of bail was granted although accusations were serious in the nature of offence punishable u/s 302 IPC. Another ruling in Rohidas Jadhav vs. State of Maharashtra reported in 2002 all Mah.R. (Cri.) 573 accused was granted bail on the ground that there were two sets 3 of evidence – one incriminating the applicant; while the other set indicating his absence at the relevant point of time, thus, applicant was granted benefit of bail in that case. 7. Both these authorities, however, cannot come to the rescue of the present applicant as in the FIR itself, his name figured in the oral dying declaration of the victim as informed in the FIR that she was caught hold by suresh and Narendra Waware who tied her hands and administered the above insecticides, keeping their legs on the chest of the victim and when she raised shouts they ran away. According to the prosecution, further corroboration is available in written dying declaration dated 6.1.2009 at 2050 hours by the Special Executive Magistrate in the course of investigation after Medical officer certified that the patient was conscious, well-oriented and cooperative. 8. Considering the very serious accusations and prima facie material collected during the course of investigation, especially when the applicant is trying to take recourse of plea of alibi, on the basis of medical certificate obtained under the suspicious circumstances, the applicant cannot be released on bail as he is likely to tamper with the prosecution evidence. The application is, therefore, rejected. 9. It is made clear that the learned trial Judge will apply his mind independently to the facts and circumstances of the case while deciding the trial case, without being influenced by the observations made herein-above. JUDGE. sahare