IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4492 OF 2008 CRIMINAL APPLICATION NO. 4492 OF 2008 CRIMINAL APPLICATION NO. 4492 OF 2008 Dr.Yuvraj Shankarrao Pawar ...Applicant (Orig.Accused) vs. The State of Maharashtra ...Respondent Mr.A.A. Kumbhakoni, Sr.Counsel with Mr.V.V. Purwant for the Applicant. Mr.S.R. Borulkar, P.P. with Mrs.M.H. Mhatre, APP for the State. Mr.A.P. Mundergi with Mrs.P.P. Kakade for the Orig.Complainant. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : JANUARY 13, 2009 DATED : JANUARY 13, 2009 DATED : JANUARY 13, 2009 P.C. :- P.C. :- P.C. :- 1. Heard learned Senior Counsel for the applicant, learned Public Prosecutor for the State and the learned Senior Counsel for the original complainant. 2. This is an application for bail. The applicant was arrested in connection with an offence punishable under Section 302 of the IPC registered at Koregaon Police Station, Satara, vide C.R.No.59/2008. 3. It is the prosecution case that the applicant - 2 - had an affair with another woman and had proposed her to marry him about four months before the incident. The applicant and the deceased wife got married on 8th July, 1998. One daughter was born out of the said marriage in the year 1999. The prosecution case is that few days before the incident, the applicant started giving her treatment for infertility and the deceased had told her sister that she had experienced certain symptoms and had become uncomfortable and her tongue had become dry and she was not in a position to move. On the date of the incident i.e. on 15th July, 2008, the applicant called his wife to administer the injection at about 3 O’Clock and thereafter, he administered the injection and informed the maid servant not to disturb his wife since she was sleeping and wake her up at about 5 p.m. When the maid servant tried to wake up the deceased, she found that there was no movement and therefore, she called the applicant. He came to the house, examined the deceased and shifted her to his own hospital and administered few injections on her chest. The wife, however, died and the complaint was lodged against the present applicant and he was arrested on 16th July, - 3 - 2008. Post Mortem was performed by the doctor and he sent viscera for chemical analysis. After the viscera was obtained from the Chemical Analyser, cause of death was mentioned as "Pulmonary Oedema with Intra-alveolar Hemorrhage". The statements of witnesses have been recorded and the charge-sheet has been filed. It is the case of the prosecution that the applicant had taken loan from various banks and was unable to pay the loan and he had demanded money from the cousin of the deceased wife who was staying at Aurangabad and secondly, he had an affair with another lady and when an objection was taken by the deceased wife, he had murdered her by administering an injection in the afternoon which had resulted in her death by their being "Pulmonary Oedema with Intra-alveolar Hemorrhage". 4. Mr.Kumbhakoni, learned Senior Counsel appearing on behalf of the applicant submitted that the deceased was suffering from Epilepsy and prior to the marriage, she was admitted on 21st December, 1997 in the hospital when he was present at that time. He submitted that the applicant’s elder brother had married the elder sister - 4 - of his deceased wife in the year 1994. It was submitted that after the maid servant informed the Doctor about the condition of the wife, he promptly admitted her in the hospital and gave her immediate treatment when he noticed that her blood pressure had gone down, he therefore, administered injections directly in the heart in order to increase her blood pressure and to activate heart. However, he was not successful and the deceased died in the hospital. He submitted that the applicant had a very good medical practice and financially, his condition was very well since he had two hospitals and though he had taken loan from the banks, he had never committed any default and therefore, there was no question of demanding any money from the cousin of the deceased. He further submitted that the Lab Assistant with whom the applicant allegedly had an affair already had married in April 2008 and had shifted to Pune and therefore, that also could not be a ground for committing murder of his wife. He submitted that when the viscera was sent for chemical analysis, no poison was found in the said viscera and the report to that effect was given by the Chemical Analyser. It was - 5 - submitted that the deceased had a history of Epilepsy and when she was found unconscious, he had promptly given her treatment. It was submitted that therefore, there was no material to indicate that the deceased had died as a result of homicidal or unnatural death. It was submitted that the provisions of Section 302, therefore, would not be attracted in this case and there was no merit in the prosecution case to detain the applicant any further. 5. Shri Borulkar, learned Public Prosecutor appearing on behalf of the State, vehemently opposed the submission made by the learned Senior Counsel for the applicant. He submitted that the applicant had administered an injection sometime between 3 p.m. and 4 p.m. on 15th July, 2008 which had resulted in the deceased becoming unconscious and thereafter, she was admitted to the hospital. He submitted that the empty vials which were in the hospital, one vial was used and the entire dose was administered to her. It was submitted that the immediate effect of this drug was reduction of blood pressure. He submitted that the - 6 - deceased had experienced similar conditions two days before the said incident when the similar injection was given to the applicant. The learned Government Pleader invited my attention to the chart of phone calls by the applicant to the Lab Assistant. It was submitted that on the date of the incident itself, as many as 50 calls were made since the morning and even during the time when the drug was administered to the deceased, even at that time between 3 p.m. and 4 p.m, two phone calls had been made by the applicant. It was submitted that the deceased had taken objection to the extra marital affair of the applicant and therefore, she was systematically eliminated by the present applicant. It was submitted that the previous conduct of the applicant coupled with the motive to commit the offence and the statement of the maid servant and the sister of the deceased clearly established her link which points towards the role of the applicant. He submitted that the maid servant had stated in her statement that the applicant had asked his daughter to go out of the house before administering the injection. Similarly, he asked the other maid servant to go out of the house when the drug was administered. - 7 - It was submitted that therefore, this was not a fit case for grant of bail. 6. Shri Mundergi, learned Senior Counsel appearing on behalf of the complainant submitted that the applicant had not stated what was the injection given by him to his wife. He submitted that this was a fact which was within his personal knowledge and he was duty bound to inform the prosecution about the treatment which was given by him to his wife. He submitted that, however, this fact was not disclosed. He submitted that though Chemical Analyser has stated that no poison was found in viscera, a drug administered intravenously could cause the condition which was found in the deceased, more particularly, the reasons why she had died viz. "Pulmonary Oedema with Intra-alveolar Hemorrhage". He submitted that there was, therefore, no poison found could not be a ground to say that no poison was administered. He submitted that wrong drug administered intravenously caused the death of the deceased. - 8 - 7. I have heard the learned Senior Counsel for the applicant and the respondents at length. 8. The deceased was married to the applicant for more than 10 years and one daughter was born out of the said marriage. The daughter has stated that there were frequent quarrels between the father and mother which fact also has been stated by the sister of the deceased. It is no doubt true that no poison was detected in the Chemical Analyser’s report and that the subsequent treatment also appears to have been given to revive the heart and to increase the blood pressure. The only material on record is that the applicant had administered one injection to the deceased between 3 p.m. and 4 p.m. and thereafter, froth was seen by the maid servant and she had called the doctor and the deceased was promptly taken to the hospital and thereafter, inspite of efforts being taken, the deceased died. The cause of death which was subsequently given by the Doctor as "Pulmonary Oedema with Intra-alveolar Hemorrhage", in my view, at the stage of granting bail, it has to be seen whether there is sufficient material - 9 - on record particularly, where the punishment is life imprisonment or death which could be sufficient material to implicate the accused for the commission of the offence. In the present case, in my view, the material on record is not sufficient to say with absolute certainty that the applicant was responsible for the death of his wife. The applicant had administered her injection. It has not come on record that a drug which was administered had caused the death of the deceased. The subsequent treatment obviously appears to have been given to revive the patient. Under these circumstances, in my view, the applicant has made out a case for grant of bail. However, as rightly pointed out by Mr.Mundergi, learned Senior Counsel appearing for the complainant that if the applicant is released on bail, he is likely to tamper with the evidence since the concerned witnesses are the maid servants and hospital staff, in my view, suitable conditions will have to be imposed on the applicant in order to ensure that he is not in a position to influence the witnesses or tamper with the evidence. Further, prima facie if it is found by the court that the applicant is likely to be - 10 - acquitted, even in such cases, the court is duty bound to grant bail even to accused who is arrested in connection with an offence punishable under Section 302 of the IPC. Since I have observed hereinabove, prima facie, I am of the view that the applicant has made out a case for grant of bail. 9. The applicant, therefore, be released on bail in the sum of Rs.25,000/- with one or two sureties in the like amount subject to following conditions :- a) The applicant shall not enter the Koregaon Taluka pending the hearing and final disposal of the criminal trial. b) The applicant shall give his new residential address to the Superintendent of Jail prior to his release and he shall report to Satara City Police Station from his residence once in a week for a period of six months and thereafter, once in a month. - 11 - c) The applicant shall not contact any of the prosecution witnesses or try to give any kind of inducement to the witnesses. He shall not threaten any of these witnesses. If any complaint is received by the police in this regard, the bail granted to the applicant will be cancelled on an application being made by the police. d) The trial court shall not be influenced by any observation made by this Court while granting bail and the said observation shall not be treated as any finding on the merits of the case. The trial court when evidence is adduced before it, shall decide the case on merits and in accordance with law. 10. The application is disposed of. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)