1708ba276.11.odt 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 276 OF 2011 Sopan Champatrao Mahajan :: APPLICANT -: Versus :- State of Maharashtra through P.S.O.,Wadner :: RESPONDENT ........................................................... Mr. R. M. Daga, Advocate for the applicant. Mr. N. R. Rode, A.P.P. for the respondent-State. ................................................................ CORAM : U. V. BAKRE, J. DATE OF RESERVING ORDER : 17TH AUGUST, 2011. DATE OF PRONOUNCEMENT OF ORDER : 20TH AUGUST, 2011 O R D E R 1. This is an application for bail under Section 439 of the Criminal Procedure Code filed by the applicant who has been arrested on 1/8/2010, in Crime No. 57/2010 registered for offence punishable under Section 302 read with Section 34 of the Indian Penal Code, by the Wadner Police Station. 2. The allegation in the crime is that on 26/7/2010 during night time the deceased Nanda was sleeping in her house and accused Nivruti Mahajan was also sleeping with her when the applicant along with five others came there and dragged Nanda and Nivruti out of the house and all the accused persons then assaulted them with wooden sticks and other articles. It is further alleged that deceased Nanda was mercilessly assaulted with fist and kick blows on the road and then she was taken 1708ba276.11.odt 2 to the house of Nivruti, where also she was mercilessly assaulted and poison was forcibly administered to her, which caused her death. 3. The applicant has stated that the death of Nanda is suicidal and even as per the post-mortem examination report, the cause of death is due to insecticidal poisoning. The applicant has stated that the first information report has been registered after four days of the incident. The statement of eye witnesses namely:- Rajendra Kirnake and Namdeo Taksande have been recorded about 6 to 7 days after the date of incident. According to the applicant, during the Marg inquiry, police have recorded statements of many villagers including parents of deceased Nanda and the said statements reveal that Nanda had committed suicide. The applicant states that on account of local politics, a false report has been lodged against him and others. The applicant has stated that the investigation in the matter is complete and charge-sheet has already been filed and four accused persons namely; Nivruti, Yogita, Shobha and Golu are already released on bail. The applicant, therefore, prays for bail. 4. By way of reply, the respondent-State has resisted the application. The respondent has stated that the deceased has sustained various other injuries on her person, though her death is due to insecticidal poisoning. It is further stated in the reply that the eye witnesses namely:- Rajendra and 1708ba276.11.odt 3 Namdeo have clearly implicated the applicant. It is also stated that the prosecution witnesses and the accused persons are resident of same village and, therefore, tampering with the evidence, cannot be ruled out. 5. Heard arguments. Learned Advocate Shri R. M. Daga argued on behalf of the applicant whereas learned A.P.P. Shri N. R. Rode argued on behalf of the respondent-State. 6. Perused the case papers. 7. There are altogether seven accused persons in the present crime charged for offence punishable under Section 302 read with Section 34 of the Indian Penal Code. AQccused persons namely Nivruti, Yogita, Shobha and Golu are released on bail and the applicant along with two others namely:- Pandurang Mahajan and Pankaj Mahajan, are still in custody. 8. It is true that as per the post-mortem examination report the cause of death of Nanda is due to insecticidal poisoning. However, the said post-mortem examination report further reveals that there were five other injuries in the form of abrasions on the face of the deceased Nanda. One of the injuries was on the lips of the deceased. 9. The statements of eye witnesses namely:- Ranjendra and Namdeo reveal that the present applicant had caught hold of 1708ba276.11.odt 4 the legs of the deceased; accused Pankaj had caught hold of the hands of the deceased and accused Pandurang had administered the poison. 10. Prima-facie, it is therefore, evident that the applicant, Pankaj and Pandurang had actively participated in the commission of the offence. Prima-facie it is also evident that this is a case of murder. 11. The case of the present applicant cannot be compared with that of Nivruti, Yogita, Shobha and Golu. 12. The respondent has stated that the prosecution witnesses and the accused are resident of the same village and therefore there is possibility of tampering with the evidence. It is true that the charge-sheet has already been filed, however, the trial has not yet begun. 13. In my view, therefore, the applicant is not entitled to bail, at this stage, in a case which involves a serious offence of murder for which there can be a capital punishment. 14. Hence, the application is rejected. JUDGE wwl