1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 1948 of 2010 Husna Afroz W/o Rashid Khan ..VERSUS.. State of Maharashtra, through P.S.O., P.S., Ramdaspeth, Akola Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. S.V.Sirpurkar, Advocate for the applicant. Mr. T.A. Mirza, A.P.P. for the respondent/State Mr. A.J.Mirza, Advocate for intervener/complainant CORAM : Prasanna B. Varale, J. DATED : 8th March , 2011 . Heard. By the present application under Section 439 read with Section 437 of the Code or Criminal Procedure, the applicant is seeking her release on bail in connection with Crime No. 162/2009, registered with Police Station, Ramdaspeth, Akola, under Sections 403, 307, 34, 498-A of Indian Penal Code. Mr. Sirpurkar, learned Advocate for the applicant has fairly submitted that this is a second attempt of the applicant. Initially, the applicant had approached this Court for releasing her on bail and this Court by order dated 21/10/2010 allowed the applicant to withdraw the application and accordingly the application was withdrawn. Mr. Sirpurkar, learned Advocate for the applicant by inviting my attention to the First Information Report, which is placed on record, has submitted that the nature of allegations against the applicant is that the applicant who was present on the spot with one Harul and Tanveer along with one Mujeeb Khan, assaulted the victim Firdos Kausar and by pouring kerosene, the victim was set on fire. Though the victim was immediately taken to the hospital for providing medical treatment, the victim succumbed 2 to the injuries. On the allegations in the report, the applicant was arrested by the police. Mr. Sirpurkar, learned Advocate for the applicant further submitted that bare perusal of the report would show that the allegations against the applicant are vague in nature. The applicant is not the first degree relative of the victim and she is the daughter of one Chand Khan, whereas the accused no.1 Mujeeb Khan, accused no.3 Hurul Mard Yunus Khan and accused no.4 Tanveer Khan are the first degree relatives namely sons and daughter of one Daud Khan. Learned Advocate further submitted that the applicant is even not residing along with these accused persons, who are residing at Lal Bangla, Baidpura, Akola, whereas the applicant is resident of Khangarpura, Akola with her husband Rashid Khan. Learned Advocate submitted that even for attracting the provisions of offence under Section 498-A IPC, the material is too short to claim the applicant as first degree relative of deceased in view of above mentioned facts. Learned Advocate for the applicant further submitted that the applicant is also entitled for her release on bail on the ground of parity. To support his submissions, learned Advocate for the applicant invited my attention to the order passed by the learned Sessions Judge, Akola in Misc. Criminal Application No. 799/2009, preferred by the co-accused Tanveer Ahmed Daud Khan. Learned Advocate submitted that the set of allegations against the present applicant are similar to the set of allegations against Tanveer Ahmed. Learned Advocate submitted that by considering the material collected by the investigating agency, the learned Sessions Judge found that on hearing the noise neighbourers rushed to the spot and found that the victim was uttering verse of Kuran. The learned Sessions Judge further observed that from the material collected by the investigating agency it is clear that the victim was in a position to speak and on hearing hue and cry, the witnesses immediately rushed to the spot, but not a single statement of witness was recorded by the investigating agency reflecting the immediate disclosure of the incident by the victim to those, who rushed to the spot. The learned Sessions Judge also observed that at the first instance 3 when the statement was recorded, it is stated that the victim had received extensive burns and was not in a position either to sign or to give thumb impression, but then the subsequent statement which was recorded by the Executive Magistrate, immediately after one hour, shows that the statement was signed by the deceased and as such the learned Sessions Judge has expressed some reservations. In view of the material collected by the investigating agency, the learned Sessions Judge allowed the application of the applicant Tanveer Ahmed. Learned Advocate for the applicant by inviting my attention to the communication from the Medical Officer, District Prison, Akola to the Superintendent, District Prison, Akola, submitted that the applicant who was in jail, was referred to the hospital for treatment of complaint of chest pain. Though, the treatment was provided to the applicant, the fact is not in dispute that the applicant is not keeping good health. Learned Advocate for the applicant, on this ground, also prayed for release of the applicant on bail. Per contra, Mr. T.A. Mirza, learned APP for the State vehemently opposed the application. Learned APP has submitted that the applicant had initially approached to this court and this is her subsequent attempt and as there is no change in the circumstance, the application be rejected. When it was asked to the learned APP whether the investigating agency has collected any material to show the relation of the applicant with the deceased or accused no.1, the learned APP submitted that in view of one statement, the applicant is daughter of maternal uncle of accused no.1. He submitted that the application of accused Tanveer Ahmed for grant of bail is allowed by the learned Sessions Judge and though the order is under challenge by the State before this Court vide Criminal Application NO. 916/2010, no order is yet passed in the said application by this Court. I have gone through the material placed before this Court and heard learned Advocates appearing for the respective parties. From perusal of the record, it is seen that the application preferred by accused Tanveer Ahmed was allowed by the learned Sessions 4 Judge by considering the material, more particularly, in view of the background that the set of circumstances alleged against the applicant and the accused Tanveer Ahmed are similar in nature. It is not in dispute that the applicant is the daughter of maternal uncle of accused no.1, who is not residing with accused no.1, but residing with her husband in the locality namely Khangarpura. It is also reflected that the applicant while in jail needed medical treatment for the ailment, which was provided through the Medical Officer, District Prison, Akola. It is also not in dispute that the investigation is concluded by filing of charge sheet. The apprehension, even if it is expressed by learned APP of non-availability of the applicant, it can be taken care of by putting the applicant on certain conditions as the charge- sheet is already filed. By considering the material, I find considerable merit in the submissions of learned Advocate for the applicant. In the result, the application is allowed. The applicant be released on bail on furnishing P.R. bond of Rs.25,000/- (Rupees Twenty Five Thousand only) with one solvent surety in the like amount, on the following conditions. a] The applicant to cooperate with the investigating agency and attend the police station, Ramdaspeth, Akola on every 2nd and 4th Sunday between 9.00 a.m. to 12.00 noon. and mark her attendance for a period of six months or till trial concludes whichever is earlier. b] The applicant shall not tamper with the prosecution evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. c] The applicant to submit her residential address and contact numbers such as phone/mobile numbers to the investigating agency. 5 d] In case the applicant is moving out of the area of police station, Ramdaspeth, she shall inform the police station about her visit to other place. In case of breach of the conditions imposed by this Court, the State is at liberty take necessary steps against the applicant in accordance with law or avail appropriate remedies as provided under the law. Criminal Application is disposed of accordingly. JUDGE Diwale