1 Cri.Appln.3380.11 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3380 OF 2011 in CRIMINAL APPEAL NO. 398 OF 2011 Bandu S/o Bhagchand Jadhav & Ors APPLICANTS VERSUS The State of Maharashtara RESPONDENT ..... Shri Sachin S. Deshmukh, Advocate for the applicants Shri N.H. Borade, APP for the respondent /State. ..... CORAM : U.D. SALVI, J. DATED : 7 th September, 2011. PER COURT : 1. Heard. Perused application and the record. 2. The applicants / accused, husband and in-laws of the deceased victim are seeking their release on bail, after admission of their appeal against the Judgment and Order of their conviction for the commission of the offences punishable under Sections 306, 304-B, 498-A read with 34 of Indian Penal Code, 1860. They have been sentenced to the Rigorous Imprisonment for five, seven and 2 Cri.Appln.3380.11 two years on respective counts and ordered to pay fine amounts in addition to the sentence of Rigorous Imprisonment imposed on them. 3. It is not in dispute that the deceased-Manisha was married to the accused No. 1 Bandu on 14-05-2007 and she joined her husband at her matrimonial home situate at Village Saranpur. Eight to nine months after the marriage, she returned to her parents house for ‘Padva’ festival and returned back to the matrimonial home, and again some twenty days before the incident in question she had been to the residence of her father at Village Shekta, and returned to the matrimonial home on 05-07-2008 along with her father. It is also not in dispute that the deceased-Manisha immolated herself on 06-07-2008 and was admitted to Government Hospital, Aurangabad (GHATI), where she succumbed to the burn injuries around on 5.00 pm on the same day. These facts are not disputed. 4. What is in dispute are the allegations of cruelty allegedly perpetrated by the accused for extracting an amount of Rs. 25,000/- for purchasing a motorcycle. The prosecution has examined the father, uncle and neighbor of the father of the deceased-Manisha to prove the allegations regarding cruelty. 3 Cri.Appln.3380.11 5. PW-1 Appasaheb Bhimraj Khomne, the father of the deceased deposed that, he paid Rs. 41,000/- as a dowry and bore the marriage expenses, and accused had started ill-treating the deceased-Manisha for the demand of Rs. 25,000/- for purchasing a motorcycle. After eight to nine months of the marriage Manisha on her visit to his residence, had disclosed these facts to him. He further deposed that some twenty days prior to the incident, Manisha informed his brother on telephone that she was being ill- treated and therefore, he brought Manisha to his residence. where Manisha had disclosed to him that the accused are beating and abusing her, so also they were threatening to kill her, if Rs. 25,000/- were not paid. In such circumstances, he took Manisha to the matrimonial home, persuaded her husband and in-laws not to ill-treat her daughter by giving assurance that he would arrange for the same amount, when he would be in a position to pay. Pertinently, he deposed that when he was by the side of his daughter-Manisha admitted in Government Hospital, Aurangabad (GHATI), after the incident of immolation, deceased-Manisha had told him that she was being ill-treated and beaten in the night before and therefore, in the early morning she poured kerosene on her body and got burnt. After performing last rites on the body of the deceased-Manisha, he lodged a complaint with Gangapur Police Station around 8.00 or 9.00 PM on 06-07-2008. 4 Cri.Appln.3380.11 6. The learned Advocate for the applicants submitted that this fact of oral dying declaration allegedly made by the deceased- Manisha before her father, is negatived by the evidence of the Investigating Officer PW-5 Kashinath Aher, who brought on record the fact that on 06-07-2008, the deceased-Manisha was not in a position to make dying declaration. Evidence of PW-5 Kashinath Aher discloses that on 06-07-2008, he visited the Government Hospital, Aurangabad (GHATI) for making inquiries regarding the Medico Legal Case about burns of Manisha and he was intending to record statement of Manisha, but she was not in a position to give statement as she had sustained 100% burn injuries. He placed on record a letter issued by the Medical Officer (Exhibit 47) in that regard in course of his cross-examination. The letter (Exhibit 47) bears endorsement of a Medical Officer “Patient is unconscious and not fit in state of mind and in condition not able to give valid statement” made by the Medical Officer. Postmortem examination report (Exhibit 34) reveals that the deceased-Manisha had sustained 93% burn injuries. 7. The learned APP countered these submissions and pointed out that the testimonies of the relations of the deceased- Manisha were corroborated by the independent evidence of PW-4 Meenabai W/o Ganesh Barge, a neighbor of PW-1 Appasaheb. Her 5 Cri.Appln.3380.11 evidence disclosed that deceased-Manisha had told about the demand made by her husband of Rs. 25,000/- for purchasing motorcycle and the ill-treatment she received at the hands of the applicant / Accused No. 1 Bandu. Significantly her evidence reveals no accusations against respondent / accused Nos. 2,3 & 4. 8. Considering these facts and circumstances and particularly the old age of the applicant / accused No. 2 Subhadrabai, the application of applicant Nos. 2, 3 & 4 deserves to be allowed and so far as the applicant / accused No. 1 is concerned his application deserves to be rejected. ORDER [i] The applicant Accused No. 2-Subhadrabai W/o Bhagchand Jadhav, Accused No. 3-Raju S/o Bhagchand Jadhav and Accused No. 4-Sangita W/o Raju Jadhav be released on executing P.R. Bond of Rs. 15,000/- (Rs. Fifteen thousand only) each, with one or more surety in the like amount, subject to the conditions : a. Applicants / accused Nos. 2,3 & 4 shall keep on record duly instructed Advocate. 6 Cri.Appln.3380.11 b. Applicants / Accused Nos. 2, 3 & 4 shall shall keep the police informed of their whereabouts from time to time. [ii] The application for bail made by the accused No. 1- Bandu S/o Bhagchand Jadhav is rejected. However, liberty is granted to move the application at the appropriate stage. [iii] Appeal to come up for hearing in due course, after the private paper book is furnished by the applicant / Accused. ( U.D. SALVI, J. ) SDM* September-11