FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders CRIMINAL APPLICATION NO. 4043 OF 2011 DEVIDAS PURA NAIK RATHOD VERSUS THE STATE OF MAHARASHTRA ... Advocate for Petitioner(s) : Mr. V.D.Salunke alongwith Mr. Chatterji Joydeep APP for Respondent(s): Mrs. R.K.Ladda. ... CORAM : SHRIHARI P. DAVARE, J. Dated: October 18, 2011 ... 1. Perused investigation papers, which were made available for the inspection purpose, as well as heard learned respective counsel for the parties, finally. 2. This is an application preferred by the applicant, seeking anticipatory bail, apprehending his arrest under Crime No.69/2011, registered at Mantha Police Station, District Jalna, for the offences punishable under section 306 of Indian Penal Code. At the outset, it is to be noted that interim anticipatory bail was granted to the applicant by this Court on 16.9.2011 and same is effective till today. 3. It appears that offence has been registered on the basis of the complaint lodged by the complainant namely Shivaji Kambale on 31.8.2011, alleging that the complainant’s son namely deceased Dipak Shivaji Kambale, aged about 16 FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders years was inmate of hostel of Renuka Balak Ashram Shala, Mantha and applicant herein, who was the Superintendent of the said hostel at the relevant time, allegedly assaulted said Dipak on the suspicion that, he committed theft of Mobile and fled away with his belongings out of the hostel and therefore, Dipak was fed up with the said ill-treatment and hence, consumed the rat poison and committed suicide. 4. On the aforesaid background, it is the contention of the applicant that Dipak Kambale had left the hostel and he was given into custody of his guardian on 17.5.2011 and produced copy of extract of admission register of hostel which is annexed at Exh ‘C’ [page 20]. Learned counsel for the applicant also pointed out from the hostel attendance register copy whereof is annexed at Exh.’D’ [page 21] that, victim Dipak Shivaji Kambale was not inmate of the said hostel at the relevant time. It is also canvassed by learned counsel for the applicant that, although, alleged incident of death of victim Dipak took place on 21.8.2011, complaint came to be lodged after delay of 10 days i.e. on 31.8.2011 and, said delay has not been explained in the contents of the said complaint. Accordingly, learned counsel for the applicant urged that interim anticipatory bail granted to the applicant be confirmed. FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders 5. Learned APP Mrs. Ladda countered said argument and opposed present application vehemently and pointed out that during the course of investigation statement of the witnesses have been recorded and statement of Kishor Thite-student, Prabhu Akhade and Shrirang Akhade disclose that, said victim Dipak was residing in the said hostel at the relevant time. It is submitted by learned APP that, although, there is no official record regarding victim Dipak was inmate of said hostel, but still Dipak was residing in the aforesaid hostel and was the victim of the ill-treatment at the hands of the applicant. 6. As regards delay, learned APP Mrs. Ladda submitted that, A.D. in respect of death of Dipak was registered on 22.8.2011 itself, and thereafter, the complainant persuaded the matter with the concerned Police Personnel to file the complaint, but cognizance there of was not taken by the concerned Police Personnel. Hence, ultimately he was constrained to send a letter to the Superintendent of Police Jalna on 29.8.2011, and, thereafter the complaint was registered by the police personnel on 31.8.2011 and, it is submitted that there was no delay on the part of the complainant to lodge the First Information Report. It is further canvassed that victim Dipak was a student of 9th standard studying in ‘C’ Division and, he attended the classes FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders up to to 20th August, 2011 and the said school and hostel are adjacent to each other. It is further submitted that custodial interrogation of the applicant is necessary for the further progress in the investigation and, hence learned APP Mrs. Ladda urged that, present application being without any substance be dismissed. 7. Considering the rival submissions, at the outset admission register of the hostel copy whereof is annexed at Exh.’C’ page 20 discloses that the victim namely Dipak Shivaji Kambale had left hostel and his custody was given to his guardian on 17.5.2011. Moreover, it is also apparent from the hostel attendance register copy whereof is annexed at Exg.’D’ page 21 to 24, which is verified by the concerned Tahsildar that Dipak Shivaji Kambale was not inmate of the said hostel, at the relevant time. On the said background, the contention of the learned APP that although, there is no official record that victim Dipak was residing in the said hostel is not acceptable and statements of witnesses namely Kishor Thite, Prabhu Akhade and Shrirang Akhade appear to be in doldrums. 8. As regards delay, true it is that accidental death was registered in respect of death of victim Dipak on 23.8.2011, and even assuming for the sake of assumption without FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders admitting the argument advanced by the learned APP that complainant approached the police personnel but its cognizance was not taken, then he could have approached the higher Police officials immediately and could have lodged the complaint, but apparently, so did not happen. Hence, fact remains that, although incident of death of victim Dipak occurred on 21.8.2011, the complaint came to be lodged after delay of 10 days, i.e. on 31.8.2011. 9. In the said context, it is material to note that learned APP submitted that complainant had sent a letter to Superintendent of Police, Jalna on 29.8.2011 and also to Collector Jalna, on 21.9.2011 and, it appears from the said letter dated 29.8.2011 that, allegation are made that attempt was made to administer poisonous substance to the victim Dipak as well as in communication dated 21.9.2011 sent to Collector Jalna, allegations are made that poisonous substance was administered to victim Dipak, but admittedly, complaint discloses that, victim has committed suicide by consuming rat poison substance and said discrepancy speaks volume for itself. 10. Besides that apparently, contents of the First Information Report are short of ingredients of section 306 more particularly, section 107 of Indian Penal Code. FARAD CONTINUATION SHEET No. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Office Notes,Office Memoranda of Coram, appearances, Court's orders or directions & Registrar's orders. Court's or Judge's orders 11. Having comprehensive view of the matter and, considering the accusations made against the applicant and nature and gravity thereof, it appears that there is no necessity of custodial interrogation of the applicant for further progress in the investigation. Hence, interim anticipatory bail granted to the applicant deserves to be made absolute, but on certain conditions :- 12. In the result, present application is allowed and interim anticipatory bail granted to the applicant on 16.9.2011 stands confirmed on the following conditions :- i] That the applicant shall give attendance before the concerned Investigator twice in a week i.e. on every Monday and Thursday between 4 p.m. to 7 p.m., till filing of the charge sheet shall cooperate in the investigation. ii] The applicant shall not influence upon the witnesses, and/or tamper with the prosecution evidence, directly or indirectly, in any manner, what so ever. 12. Present application is disposed of finally. 13. The above observations are the primafacie in nature, same may not be used in any other matter, being decided on merits. ( SHRIHARI P. DAVARE, J. ) aaa/- ***