{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2203 OF 2010 Nitin Ramchandra Jadhav & Another APPLICANTS VERSUS The State of Maharashtra & others RESPONDENTS ....... Mr. N.S.Ghanekar, Advocate for the applicants Mr. P.P.More, APP for respondents State Mr. U.S.Malte, Advocate for original complainant ....... [CORAM : A.V.POTDAR, J.] DATE: 5th July 2010 PER COURT: 1. By the present criminal application, the applicants have prayed to release them on anticipatory bail in the event of their arrest in connection with CR No.197/2010 registered with CIDCO police station, Aurangabad for an offence punishable u/s 302 r/w 34 of the Indian Penal Code. 2. Heard learned counsel for the applicants, learned APP followed by learned Counsel for original complainant. {2} 3. At the outset this Court has to take note of the judgments cited by learned counsel for original complainant. Learned Counsel for original complainant has placed reliance on the judgments reported in 1987 (Supp.1) SCC 549 in the matter of "Kiran Bedi V/s State of Rajasthan", wherein it is observed that in the matters of offence registered u/s 302 of the IPC, generally, anticipatory bail should not be granted. Learned Counsel for original complainant also placed reliance on the observations of the Apex Court made in para 6 of the judgment reported in 1997 (7) SCC 187 in the matter of "State Through Central Bureau of Investigation V/s Anil Sharma". Further reliance is placed on the judgment reported in 2007 Cri.L.J 2752 in the matter of "Gajanan Agrawal V/s State of Orissa" wherein certain factors are enumerated which require to be considered at the time of granting or rejecting anticipatory bail. 4. In the amended section 438 (1) (b) of the Criminal Procedure Code, it is elaborately discussed on the basis of the report of the Law Commission that out of several factors the factor which requires serious consideration is whether there are any chances of false implication of the accused in cognizable non bailable offence. 5. It appears that the present offence came to be registered on the basis of complaint lodged by the husband of the {3} deceased in respect of an incident, which had occurred in the afternoon of 19th May 2010. It appears that the wife of complainant, Snehprabha, was found in hanging condition in her residential premises. The complaint discloses that prior to the said incident, the deceased and present applicant No.2 had been to the house of parents of the deceased at Malegaon along with the children of the applicants. It further appears that some dispute had taken place between the applicant No.2 and the deceased in respect of the treatment given to applicant No.2 by the relatives of the deceased. This dispute exaggerated on the next day when they returned to Aurangabad. This fact is disclosed not only in the complaint but also projected by one Satish, close relative of the deceased, who reside at Malegalon. It also appears that the deceased had complained to her mother and sister about the evil eye of applicant No.1 on her due to abnormal physical condition of her husband. Thus, in this background the present application requires to be considered. 6. It appears that in the morning of 19th May 2010, the complainant had left his house to attend his job. It is not disputed that the deceased was running a shop. It appears that on the fateful day when the complainant left the house, the deceased was requesting him to remain with her as she was not feeling well. It appears that thereafter phone call was made by the complainant to the deceased on 10.00 a.m., which was attended by the deceased, however the calls made after 12.00 noon were not responded. It {4} appears that at about 2.30 p.m. complainant returned back to his house and opened the door with the latch key which he was having and noticed the deceased in hanging condition in the room. Thereafter, the dead body was sent for Postmoretem and thereafter it was cremated. The applicants were present at the time of cremation of the deceased. It is alleged that the applicants were inquiring about the result of the postmortem and the cause of death, revealed from the postmortem. It appears that on 24th May 2010, the present complaint came to be lodged against the present applicants on suspicion. As the initial attempts of the applicants to get themselves released on anticipatory bail could not succeed, they are before this Court. 7. During the course of investigation statements of mother and sister of the deceased are recorded. The said statements disclose that the deceased had disclosed them about the evil eye of applicant No.1 on the deceased. During the course of investigation statement of one Satish is also recorded. He has stated that on the fateful day he had seen the applicants outside the house of the deceased, as they had enquired with him as to whether the deceased was in the house or not. Though his presence appears to be unnatural, however cannot be discarded at this stage. 8. Thus, it is clear that the case of the prosecution rests on circumstances and when a witness has stated that he has {5} noticed presence of the applicants outside the house of the deceased at the relevant time, the truth of the same can be unearthed during the trial only. Learned APP has submitted that there were repeated calls from applicant No.1 to the deceased from their respective mobile numbers, till 15th May 2010 coupled with the fact that there is disclosure in the statements of the sister and mother of the deceased to that effect. Considering these aspects, this Court is of the opinion that to unearth the truth, custodial interrogation of the present applicants is necessary. Consequently, the application which is devoid of any merits, stands dismissed. [A.V.POTDAR, J.] drp/B10/criapln2203-10