1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (BA) No.246/2011 Darshana wd/o Mukeshkumar Jalodiya ..vs.. The State of Mah] 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. S.S.Doifode , A.P.P. for the Non-Applicant C O R A M : U. V. BAKRE, J . CLOSED FOR ORDER ON : 12-10-2011 ORDER PRONOUNCED ON : 18-10-2011 The applicant, who has been arrested on 5.12.2010 in Crime No.273/2010, registered at Police Station, Chandrapur City, for offence punishable under section 302 read with section 34 of the Indian Penal Code, has filed the present application for bail. 2. Investigation in the matter has been completed and the Charge Sheet has been filed on 25.2.2011. 3. The case of the prosecution, in short is as follows: The applicant is the wife of deceased Mukeshkumar. She is an Insurance Agent. A policy worth Rs.10,00,000/- [Ten lacs rupees] was drawn in the name of Mukeshkumar and the applicant was named as nominee in the said policy. The applicant was having love affair with one Manojkumar Sonkalyari who is the accused no.2 in the said crime. On 28.11.2010, the applicant along with her husband Mukeshkumar went to Chandrapur by railway where she had called the accused no.2 Manojkumar by giving a telephonic 2 message. The accused no.2 Manojkumar came at the Chandrapur Railway Station. Thereafter, the applicant (accused no.1) and Manojkumar (accused no.2) took the deceased Mukeshkumar on the motorcycle of the accused no.2 and all three of them proceeded towards Ballarsha. After going to a distance of about 2 k.m. from Chandrapur accused no.2 stopped the motorcycle near Plywood Company near Tadband Forest. Thereafter, the accused no.2 strangulated the deceased Mukeshkumar by means of a scarf (Dupatta) and at that time the accused no.1 i.e. the applicant was holding legs of the deceased and accused no.2 also assaulted him by means of knife and cut the wrist vein of the deceased. Thereafter, the applicant came at Chandrapur Railway Station along with accused no.2 and applicant came to Warora by train from Chandrapur. The applicant issued a cheque of Rs.5,00,000/- (rupees five lacs) in the name of accused no.2 as per the agreement, since she was to get Rs.10,00,000/- (rupees ten lacs) out of the insurance policy which was drawn in the name of the deceased. Thus, in order to grab the insurance money, both the accused, in furtherance of their common intention, committed the offence of murder. 4. The applicant has contended that the first information report in the present case is totally based on the alleged confessional statement made by the present applicant and the same is hit by sections 24 to 26 of the Indian Evidence Act. Therefore, according to the applicant, since the F.I.R. is illegal, the applicant deserves to be enlarged on bail. In this regard the learned advocate for the applicant has relied upon Aghanoo Nagesia ..vs. State of Bihar [AIR 1966 SC 119], wherein it has been held that a confessional first information report to police officer cannot be used against the accused in view of section 25 of the Evidence Act. In the present case initially an accidental death under No.99/2010 under section 174 of the 3 Criminal Procedure Code was registered. Subsequently, P.S.I. Trupti Deshmukh of Police Station, Chandrapur City lodged a report against the applicant and her paramour namely Manoj. No doubt in this first information report it is mentioned that the applicant gave her confessional statement. The facts stated by the applicant have been incorporated in the first information report. However, the report of the inquiry under section 174 of Cr.P.C. was prepared. From the scene of the offence, a blue coloured bag was attached in which Election card of the deceased Mukeshkumar and two sim-cards: one of Vodafone and the other of Aircel, were found and from the call details, the father of the deceased was contacted and it was revealed that the deceased was married to the applicant. It was further found that when the applicant was tried to be contacted on her mobile number provided by the father of the deceased, she received the call, but cut the same off and thereafter, she started calling from STD Land line to find out as to who had called her. On account of suspicion therefore, the applicant was taken into custody and her statement was recorded. 5. The first information report is further based on the provisional postmortem report wherein the opinion regarding the death of Mukeshkumar was given as strangulation and multiple injuries. It is also mentioned in this first information report that an inquiry report pertaining to the accidental death was prepared based on which the offence was registered. 6. In the circumstances above, it cannot be prima facie said that the first information report has been registered solely on the basis of confession of the applicant. The fact of the the the information given by the applicant can very well be taken as admissible against her as evidence of her conduct under section 8 of the Evidence Act. The first information report will not become illegal. 4 7. It was further pointed out by learned advocate Shri S.V. Sirpurkar on behalf of the applicant that as per the arrest panchnama the applicant was arrested on 1.12.2010, at 22.35 hours, but the time of registration of the offence is also the same. The above is not possible, according to Shri Sirpurkar, because as per the first information report, the applicant was taken into custody and her confession was recorded and thereafter the offence was registered. Therefore, according to advocate Shri S.V.Sirpurkar, the applicant was illegally detained and was forced to make confession in blatant violation of the principles laid down by the Hon. Supreme Court in D.K. Basu's case reported in [(1997) 1 SCC 416]. It is true that in the arrest panchnama it is shown that the applicant was arrested on 1.12.2010, at 22.35 hours. This is formal arrest soon after the registration of the offence. However, making inquiries with the applicant by summoning her, after getting information from the father of the deceased that applicant is wife of the deceased, would not amount to arresting the applicant. As already stated above an accidental death under No. 99/2010 was registered under section 174 of Criminal Procedure Code and an inquiry was being conducted. It was for the purposes of the said inquiry that the applicant was called and her statement was recorded. That cannot be prima facie taken as violation of any of the principles laid down by the Hon. Supreme Court in the case of D.K.Basu ..vs.. State of West Bengal reported in (1997)1 SCC 416. 8. Above objections of the applicant are technical in nature which otherwise need not be looked into at this stage. 9. There is prima facie evidence on record to show that previously the applicant was married to another person who died an unnatural death in similar type of facts and 5 circumstances and the applicant received insurance amount of Rs.10,00,000/- (rupees ten lacs). Further evidence on record shows that a cheque of Rs.5,00,000/- (rupees five lacs) was issued by the applicant in the name of the accused no.2 – Manojkumar, though she was not having any source of income. It is seen that the applicant had Account No.62053475541 with the State Bank of India which was a dormant account having zero balance. A cheque book containing 20 leaves was issued by the bank on 25.11.2008. The cheque which has been attached at the instance of the accused no.2 is one of the said cheques from those 20 leaves. There is evidence on record to show that an insurance policy of Rs.10,00,000/- (rupees ten lacs) was drawn in the name of the deceased and the applicant was named as a nominee in the said policy. Evidently, after the death of the deceased, the applicant would have become entitled to receive the said insurance claim of Rs.10,00,000/- (rupees ten lacs). The applicant was married to deceased on 19.8.2010 after which the said policy of Rs.10,00,000/- (rupees ten lacs) was drawn and the death of the deceased occurred soon thereafter i.e. on 28.11.2010. Knife has been seized from the accused no.2 and the motorcycle of the employer of the said accused has also been seized from the accused no.2. It is found from the record that the marriage of the applicant with the deceased and the fact that the applicant and deceased were residing together was not known to most of her relatives. Thus the said fact was kept as a secret. Surprisingly, the mobile of the accused no.2 has been seized from the possession of the present applicant. A railway ticket has been seized from the applicant which shows that she had travelled from Ballarsha to Warora. The death of the deceased occurred on 28.11.2010 at the spot on a katcha road at some distance from Chandrapur – Ballarsha road. On 29.11.2010 at 6.30 a.m. the applicant had come back home and was not wearing chappals at that time. This was seen by her neighbour and upon being questioned, 6 she answered that her chappals were lost at the railway station. As per the call details register, there are 18 calls between the mobile of the applicant and that of the accused no.2 on 28.11.2010. 10. In view of the above, in my view, there is strong prima facie case against the applicant. Learned Additional sessions Judge Chandrapur has rightly rejected the bail application of the applicant, though she is a woman. Looking at the modus- operendi of the applicant in making money through insurance by killing persons after getting married to them and drawing insurance policies in their names, I am of the view that it is not safe to release the applicant on bail at this stage. 11. Hence the application is rejected. JUDGE SMP