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Mr.Rohidas Namdeo Pokharkar-vs-All R/O Chandanapuri on 20 April, 2009

Bombay High Court Mr.Rohidas Namdeo Pokharkar-vs-All R/O Chandanapuri on 20 April, 2009
Bench: S. S. Shinde

[ 1 ]

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

CRIMINAL APPLICATION NO.335/2009

Mr.Rohidas Namdeo Pokharkar

Age 45 years, Occu. Agri.

R/o Dhorwadi (Warudi Pathar),

Tq.Sangamner Dist.Ahmednagar … Applicant Versus

1. Rajendra Karbhari Rahane

Age 32, Occu. Agri.,

2. Ajay Karbhari Rahane,

Age 34, Occu. Agri.,

3. Subhadra Karbhari Rahane,

Age 56, Occu. Agri.,

4. Karbhari Dhondiba Rahane,

Age 62, Occu. Agri.

All R/o Chandanapuri

Tq.Sangamner Dist.Ahmednagar

5. The Police Inspector,

Taluka Police Station, Sangamner

Tq.Sangamner Dist.Ahmednagar

6. The State of Maharashtra,

Through its Secretary,

Home Department, Mantralaya,

Mumbai …Respondent Respondents

Respondent

Shri A.B.Kale, Advocate for applicant

Shri R.D.Bhalerao, Advocate for respondent nos.1 to 4 Shri J.S.Gavane, A.P.P. for respondents 5 & 6-State CORAM : S.S.SHINDE,J

Reserved on: 20/03/2009

Pronounced on: 20/04/2009

[ 2 ]

JUDGMENT:

1. This application is filed by the applicant praying for setting aside the order dated 11.12.2008 passed by Additional Sessions Judge, Sangamner in Criminal Misc. Application No.190/2008 in Crime No.I-362/2008 dated 1.12.2008 registered at Taluka police station Sangamner under Sections 306, 498-A, 323, 504, 506 read with 34 of I.P.C.

2. The present applicant is father of deceased Sujata w/o Rajendra Rahane. It is the case of the applicant that his daughter Sujata committed suicide by jumping in the well due to harassment by the present respondent nos.1 to 4. The respondent no.1 is husband, respondent no.2 is brother-in-law, respondent no.3 is mother-in-law and respondent no.4 is father-in-law of deceased Sujata.

. It is the case of the applicant that the marriage of deceased Sujata was performed with respondent no.1 in the year 2002. The respondents started giving ill-treatment to Sujata just after 1 and half years after the marriage. The respondents no.1 to 4 gave mental and physical ill-treatment to deceased Sujata due to non fulfilment of demands on the ground that, [ 3 ]

she should ask partition of land in her favour from her father as well as by making demand of Rs.2 lakhs and bungalow.

. It is the case of the applicant that, in the month of April 2008 respondents beaten Sujata on her leg by Iron rod (Kudal). She was admitted to hospital of one Dr.Tambe. It is further case of the applicant that due to ill-treatment by the respondents, the deceased Sujata committed suicide by jumping in the well on or abut 1.12.2008. The FIR came to be registered on 1.12.2008. The Doctor has issued certificate dated 20th January 2009.

. It is further case of the applicant that the crime came to be registered at Taluka police station Sangamner on 1.12.2008 for the offence under sections 306, 498-A, 323, 504, 506 read with 34 of I.P.C. against the respondents/accused bearing Crime No.I-362/2008.

3. It is the case of the applicant that the respondent nos.1,2 and 4 were arrested on 1.12.2008 and respondent no.3 was arrested on 3.12.2008, MCR was granted to the accused on 6.12.2008.

[ 4 ]

. The respondents preferred bail application before the Sessions Judge on 8.12.2008 under Section 439 of Cr.P.C. bearing Criminal Misc.Application No.190/2008. The notices were issued in the said application. The Additional Public Prosecutor submitted his say on 11.12.2008.

. The learned Additional Sessions Judge granted bail to the respondents-accused on 11.12.2008. This order is impugned in this application.

. The learned counsel appearing for the applicant submitted that the learned Sessions Judge, Sangamner failed to appreciate that there is a specific allegation of making demand of money of Rs.2 lakhs and bungalow against all the accused-respondents. The FIR refers to the past incident happened in the month of April 2008. The Additional Sessions Judge failed to appreciate that the suicide of deceased Sujata is within seven years of the marriage and, therefore, there is a presumption under section 113A of the Evidence Act. It is further argued that the incident happened at the matrimonial place of the deceased. It is further submitted that, the learned Additional Sessions Judge, Sangamner failed to appreciate that the contents of the A.D. intimation [ 5 ]

would indicate that the conduct of the accused no.1 was suspicious. It is further submitted that the Additional Sessions Judge failed to consider that if bail is granted the accused will tamper with prosecution witnesses such as Police Patil of the village and other neighbouring witnesses. It is further submitted that all the accused are named in the FIR.

. The learned counsel further submitted that the medical certificate issued by the Mauli General Hospital dated 20th January 2009 clearly discloses that, the deceased Sujata Rajendra Rahane came to the hospital on 25th April 2008 for O.P.D. checkup only, having blunt injury on the leg. According to learned counsel, the Sessions Judge has not taken into consideration the certificate issued by Mauli General Hospital. The learned counsel further invited my attention to the reported judgment of the High Court in case of Kalyan Chandra Sarkar v. Rajesh Ranjan Alias Pappu Yadav and another, reported in 2004(7) SCC 528 and more particularly to para 10 and 11 of the said judgment and submitted that, the Court granting bail should exercise its discretion in a judicious manner and not as a matter of course. Though at the stage of granting bail a detailed [ 6 ]

examination of evidence and elaborate documentation of the merit of the case need not be undertaken, there is a need to indicate in such orders reasons for prima facie concluding why bail was being granted particularly where the accused is charged of having committing a serious offence. Any order devoid of such reasons would suffer from non-application of mind. It is also necessary for the court granting bail to consider among other circumstances, the following factors also before granting bail; they are:

(a) The nature of accusation and the

severity of punishment in case of

conviction and the nature of supporting

evidence.

(b) Reasonable apprehension of tampering

with the witness or apprehension of threat

to the complainant.

(c) Prima facie satisfaction of the court in support of the charge.

. The learned counsel further invited my attention to the reported judgment of the Surpeme Court in case of Dinesh M.N.(S.P.) v. State of Gujarat reported in (2008) 5 Supreme Court Cases 66 and submitted that the Court dealing with application for cancellation of bail under Section 439 (2) can consider whether irrelevant materials were taken into consideration [ 7 ]

while granting bail.

4. The learned counsel further submitted that the Sessions Judge while granting bail has not verified the record. The Additional Sessions Judge has not prima facie satisfied himself before granting bail, he has not looked into contents of the FIR and the fact that the death occurred within seven years. The learned counsel further submitted that there is a reference to the demand of money in the FIR and learned Judge granting bail has not appreciated the contents of the FIR. According to learned counsel, the demand of money even after marriage, amounts to dowry. The learned counsel submitted that the bail is granted without application of mind. It is further submitted that the medical certificate at page 13 issued by the Mauli General Hospital corroborates with the contents of the FIR. According to learned counsel, though each and everything is not stated in FIR, the FIR cannot be encyclopaedia as the Apex Court has observed time and again that the FIR is not encyclopaedia. It is further submitted that respondents have made wrong statement in affidavit on oath that marriage between the applicant’s deceased daughter Sujata and respondent no.1-husband took place in the year 2000 contrary to record and this [ 8 ]

itself is sufficient to cancel the bail of the applicant. It is further submitted that for the reasons stated in the application and in view of the oral submissions bail granted to the respondents may be cancelled.

5. The learned A.P.P. for the State submitted that there are statements of the witnesses who categorically stated that there was demand of dowry by the respondents-accused. The learned A.P.P. further submitted that the wedding card collected by the I.O. shows the date of marriage as 9.5.2002. The learned A.P.P. submitted that, the Additional Sessions Judge without appreciating the statements of the witnesses and entire evidence collected by the prosecution, granted bail to the respondents and, therefore, the same deserves to be cancelled by allowing the application filed by the complainant.

6. On the other hand, the counsel appearing for the original accused-respondents herein invited my attention to the affidavint-in-reply filed in this Court and submitted that what is stated in the application is disputed by the respondents. According to learned counsel, the vague and baseless allegations are made by the applicants in the [ 9 ]

application which are false, improper, unjust and requires to be rejected.

. The learned counsel further submitted that the deponent Shri Ajay Karbhari Rahane has stated in the affidavit in reply that he is residing separately from other three co-accused, father, mother and brother since long back and under such circumstances, the implication of the respondents-accused in the false case is afterthought. It is further submitted that there was no demand of any dowry. There was no abatement to suicide and, therefore, there is no question of any involvement of the respondents in the said crime.

. It is further submitted that Rajendra is qualified, well cultured and well reputed and polite person and there is no question of his involvement in any crime. It is further submitted that the financial position of the family of the respondents is very sound, they are from cultured family and there is no possibility of demanding anything either in the form of money or bungalow from the deceased Sujata. It is further submitted that the respondents are implicated in the alleged crime only under the influence of revengeful attitude at the hands of [ 10 ]

complainant. It is further submitted that though it is alleged in the complaint that in all three alleged incident of harassment and cruelty of late Sujata at her matrimonial home has taken place, except the last one there is no any complaint filed against the respondents either by Sujata or by the father of Sujata. It is further submitted that the order passed by the Additional Sessions Judge is well reasoned order and passed in judicious manner and does not require any interference by this Court. It is further submitted that there is no specific allegation of making demand of money of Rs.2 lacs and bungalow against all the accused in the FIR. It is further submitted that there is no any incident happened in the month of April 2008 as alleged by the complainant in the complaint and application. It is further submitted that it is not correct to say that the death of Sujata took place within seven years of the marriage, because the marriage of Sujata had been performed in May 2000 and the alleged incident had occurred on 1.12.2008. It is further submitted that there is no question of presumption u/s 113 of the Evidence Act. It is further submitted that, the requirement of section 113A is that, the husband or such relatives of the husband, as the case may be, had subjected deceased to cruelty and in case of [ 11 ]

presumption u/s 113B there should be such cruelty or harassment in connection with any demand of dowry. Thus, before presumption can be drawn, the prosecution must established cruelty or harassment beyond reasonable doubt as required by this provision.

. It is further submitted that the aid of provisions of Section 113A can be taken only if it is shown not only that suicide occurred within seven years of the marriage but that either the husband or his relatives had subjected the lady to cruelty. Hence it is necessary for the prosecution to establish that, in fact the victim had been subjected to cruelty by the accused.

. It is further submitted that the incident happened at matrimonial place of deceased and A.D. was registered. Though alleged incident had happened at matrimonial place of deceased the Sessions Judge had taken into account entire evidence collected by the prosecution and granted bail to the respondents. It is further submitted that there is delay of about ten hours in lodging FIR. During previous night deceased Sujata had already spoken to her real brother Yogesh on telephone and she routinely enquired about well [ 12 ]

being of her relatives. This would show that, her death could be accidental one. It is further submitted that there is no specific allegation of dowry, related demand having been made soon before death of Sujata. There is no complaint of ill-treatment by Sujata although she was well educated. Even there is no complaint of any other relatives before the incident dated 1st December 2008. It is further submitted that the Sessions Court has rightly observed that investigation has progressed and there is no reason why bail should not be granted to the respondents. It is further submitted that the conditions which were imposed by the Sessions Court while granting bail are strictly followed by the respondents.

. It is further submitted that in case of Chandrashekhar R.Deshmukh v. The State of Maharashtra reported in 2006(5) Mh.LJ 711 it is held: “Bail granted earlier cannot be cancelled

on the basis of mere allegations unless

truthfulness of allegations established”.

. The learned counsel further relied on reported judgment in case of Mirza Ilyas Baig v. The State of Maharashtra reported in 2006(1) Mh.LJ (Cri) [ 13 ]

702, in which it is held:

702

“Cancellation of bail – when liberty is

granted to the citizen, it should not be

taken away unless there is sufficient

material against him”.

. It is further submitted that the order passed by the Sessions Court is judicious and after proper application of mind and, therefore, this Court may not interfere in the order passed by the Sessions Court granting bail in favour of the respondents. The learned counsel taken me through affidavit-in-reply filed on behalf of respondents and submitted that application for cancellation of bail may be rejected.

. I have heard the learned counsel for the applicant at length and learned A.P.P. for the State and learned counsel appearing for the original accused, perused the contents of the application, annexures thereto and investigation papers made available by the Additional Public Prosecutor. Before I proceed to assign reasons to dispose of this application, at this juncture, it would be relevant to refer to some of the reported judgments of the Apex Court as well as this Court laying down some factors to be considered at the time of granting/cancellation of [ 14 ]

bail.

7. In case of Puran vs. Rambilas and another, reported in (2001) 6 Supreme Court Cases 338, 338 the

Supreme Court held that, an order granting bail passed by ignoring material and evidence on record and without giving reasons, would be perverse and contrary to principles of law. Such an order would itself provide a ground for moving an application for cancellation of bail, such ground for cancellation is different from the ground that the accused misconducted himself or some new facts call for cancellation.

8. In case of Salim Khan vs. Sanjai Singh and another, reported in (2002) 9 Supreme Court Cases 670,

670 the Apex Court held that, while granting bail the Court must consider all the statements recorded under Section 161 Cr.P.C., examine the gravity of the offence and also examine the question of possibility of the accused tampering with the evidence and possibility of getting the attendance of the accused during trial and only then bail can be granted.

. In case of Kalyan Chandra Sarkar vs. Rajesh Ranjan alias Pappu Yadav and another reported in [ 15 ]

(2004) 7 SCC 528, the Hon’ble Supreme Court held: 528

“Among the other circumstances of the case,

the factors which are required to be

considered by the court before granting

bail are (a) the nature of accusation and

the severity of punishment in case of

conviction and the nature of supporting

evidence, (b) reasonable apprehension of

tampering with the witness or apprehension

of threat to the complainant, and (c) prima

facie satisfaction of the court in support

of the charge”.

. In aforesaid judgment in para 18, the Hon’ble Apex Court observed that, prima facie reasons for granting bail is a requirement of law in cases where such orders on bail application are appealable, more so because of the fact that the appellate court has every right to know the basis for granting the bail.

9. Yet in another case, Sudha Verma vs. State of U.P. and another, reported in 2007 AIR SCW 5598, the Hon’ble Supreme Court in para 12 held:

“12. There is a need to indicate in the

order, reasons for prima facie concluding

why bail was being granted particularly

where an accused was charged of having

committed a serious offence. It is

necessary for the courts dealing with

application for bail to consider among

other circumstances, the following factors

also before granting bail, they are:

[ 16 ]

. 1. The nature of accusation and the

severity of punishment in case of

conviction and the nature of supporting

evidence,

. 2. Reasonable apprehension of tampering

of the witness or apprehension of threat to

the complainant;

. 3. Prima facie satisfaction of the

Court in support of the charge.

. In case of Dinesh M.N.(S.P.) v. State of Gujarat, reported in (2008) 5 Supreme Court Cases 66, 66 the

Supreme Court in para 21 observed :

“21. Though the High Court appears to have

used the expression “ban” on the grant of

bail in serious offences, actually it is

referable to the decision of this Court in

Kalyan Chandra Sarkar v. Rajesh Ranjan.

In para 11 it was noted as follows: (SCC

pp.535-36)

. 11. The law in regard to grant or

refusal of bail is very well settled. The

court granting bail should exercise its

discretion in a judicious manner and not as

a matter of course. Though at the stage of

granting bail a detailed examination of

evidence and elaborate documentation of the

merit of the case need not be undertaken,

there is a need to indicate in such orders

reasons for prima facie concluding why bail

was being granted particularly where the

accused is charged of having committed a

serious offence. Any order devoid of such

reasons would suffer from non-application

of mind. It is also necessary for the

court granting bail to consider among other

circumstances, the following factors also

before granting bail; they are:

. (a) The nature of accusation and the

severity of punishment in case of

[ 17 ]

conviction and the nature of supporting evidence.

. (b) Reasonable apprehension of tampering

with the witness or apprehension of threat

to the complainant.

. (c) Prima facie satisfaction of the court in support of the charge. (See Ram Govind Upadhyay v. Sudarshan Singh and Puran v. Rambilas.)”

10. In case of Brij Nandan Jaiswal v. Munna alias Munna Jaiswal and another, reported in (2009) 1 Supreme Court cases 678, the Hon’ble Supreme Court in 678

para 12 held:

. 12. It is now a settled law that the

complainant can always question the order

granting bail if the said order is not

validly passed. It is not as if once a

bail is granted by any court, the only way

is to get it cancelled on account of its

misuse. The bail order can be tested on

merits also. In our opinion, therefore,

the complainant could question the merits

of the order granting bail. However, we

find from the order that no reasons were

given by the learned Judge while granting

the bail and it seems to have been granted

almost mechanically without considering the

pros and cons of the matter. While

granting bail, particularly in serious

cases like murder some reasons justifying

the grant are necessary”,

. The observations/principles/factors laid down in the above judgments by the Apex Court are necessary to be taken into consideration while entertaining bail application. It is also obligatory on the part [ 18 ]

of Judge granting bail to briefly refer to the material which is gathered during course of investigation as observed by this Honourable Court in para 11 in case of Smt. Ranjanabai w/o Kisansing Dumale v. State of Maharashtra and Ors., reported in 2008 All MR (Cri)2337. The case in hand requires to be considered in the light of aforesaid pronouncement by the Apex Court and this Court.

11. Before I proceed to give reasons for setting aside the impugned order, I feel it appropriate to indicate broadly the evidence collected by the prosecution from the date of incident till the bail was granted to the respondents-accused. In the instant case, the alleged incident took place on 1.12.2008 and bail was granted to the respondents-accused on 11.12.2008.

. The complainant filed complaint on 1.12.2008 at about 17.15 ours. In said complaint, the complainant has stated that the marriage of Sujata with respondent-husband was solemnized in the year 2002. There is also a reference in the complaint that amount of Rs.42000/- towards dowry was given to the family of the husband. There is also a reference about education of deceased Sujata that she has [ 19 ]

studied upto 12th Science and she has also completed 1 and half years Nursing Course. The complaint further discloses that after 1 to 1 and half year of the marriage the brother-in-law of Sujata namely, Ajay Karbhari Rahane, mother-in-law Subhadrabai Karbhari Rahane, father-in-law Karbhari Dhondiba Rahane and husband Rajendra Karbhari Rahane beat victim Sujata on account of partition of land of her father and insisted that, Sujata should claim her share in the said land, and their demand of rupees 2 lacs from the parents of the deceased Sujata. There is also reference in the complaint that, there was threat by all accused persons to the victim Sujata that in case she wants to stay at bungalow, she will have to bring Rs.2 lacs from her parents. There is also reference that the brother of the husband of Sujata threatened Sujata that he will kill her in case no demand is fulfilled. The said incident of beating by the accused persons and threat given by the brother of the husband was narrated by the victim Sujata to mother when she visited her parents house. It is also stated in the complaint that, with the help of expectation that things would improve, the parents ignored the ill-treatment and torture to daughter Sujata and convinced her to go to her husband’s place.

[ 20 ]

. The complaint further discloses that in the month of April 2008 the husband Rajendra Karbhari Rahane, brother of the husband Ajay Karbhari Rahane, mother-in-law, namely, Subhadrabai Karbhari Rahane and father-in-law Karbhari Dhondiba Rahane demanded rupees 2 lacks from the victim Sujata in case she wants to stay in bungalow and said amount was to be brought by Sujata from her parents. Further the accused were asking partition of land from her father’s land and the accused persons beat Sujata by crowbar on her leg and she sustained injury on her leg. She was hospitalised at Sangamner in Mauli Hospital. Dr. Tambe treated victim Sujata for 3 to 4 days in his hospital at Sangamner. The said incident was not made known to the complainant or other family members of the complainant. The complainant and his family members had no idea about the fact that Sujata was admitted in the hospital at Sangamner. However, complainant suddenly went to Sangamner and found that his daughter was admitted in the hospital of Dr.Tambe. However, by the time complainant reached to Sangamner, the discharge was given to Sujata. The complainant went to Chandanapuri at matrimonial house of daughter Sujata. Daughter Sujata told him about ill-treatment and [ 21 ]

assault given by the family members. She further disclosed that she was not allowed to make even phone call to her parents. When complainant made enquiry with the family members of the daughter about ill-treatment and assault on her leg, father-in-law and mother-in-law gave evasive answers and asked the complainant to leave their house and told him that whatever action he wants to take against them he is free to take said action and they are not bothered for the same. The complaint further discloses that the said incident was narrated by the complainant to the Police Patil of village Chandanapuri. The complaint further discloses that, though the daughter was continuously harassed in matrimonial house, afraid of future life of the daughter, the complainant did not give any complaint to the police station. The complaint further discloses that there was continuous ill-treatment and torture to daughter Sujata. Since she had two daughters and thing would improve in matrimonial house, the complainant ignored the incident and ill-treatment and torture to daughter Sujata. The complaint further discloses that, victim Sujata knew swimming and used to swim in water storage near the house of the complainant before marriage.

[ 22 ]

. The complaint further discloses that the marriage took place in 2002 and thereafter there was ill-treatment and harassment at the hands of family members of the matrimonial house to the deceased Sujata and as a result of ill-treatment and physical and mental torture to Sujata she committed suicide by jumping in a well. The complainant in the end prays for strict legal action against the accused persons. . On 1.12.2008 statement of one Shri Nana Kisan Rahane was recorded by the police who saw the dead body of the deceased Sujata in well. The police also recorded the inquest panchanama on 1.12.2008. There is also certificate by Medical Officer, Cottage Hospital, Sangamner dated 1st December 2008 in which it is mentioned that, the post-mortem examination was done on the body of Mrs. Sujata Rajendra Rahane, Chandanapuri on 1.12.2008. The cause of death is “Death due to asphyxia due to drowning”.

. There is spot panchanama dated 1st December 2008 carried out in presence of panchas namely, Rambhau Martand Rahane and Dattatraya Ramkrishna Satpute. There is also statement of one Sakhubai Rohidas Pokharkar who is mother of deceased Sujata. In her statement she has categorically stated about [ 23 ]

ill-treatment and harassment and physical and mental torture given by the accused persons to the deceased Sujata. There is also statement of Ganesh Rohidas Pokharkar who also states about ill-treatment, harassment and physical and mental torture by father-in-law, mother-in-law, husband and brother of the husband of Sujata. Further there are statements corroborating the contents of the complaint recorded on 2nd December 2008 of Yogesh Rohidas Pokharkar, Ganga Yashwant Dighe, Bhausaheb Kashinath Dighe, Somnath Ramnath Jadhav and all they support the prosecution story.

. There is also statement of Bhausaheb Krishna Pokharkar dated 3rd December 2008 in which he also stated about ill-treatment and harassment to the deceased Sujata by her family members There is also statement of Kaushik Gangadhar Jadhav supporting the prosecution story. There is also statement of Sanjay Sitaram Pokharkar recorded by the I.O. that also corroborates the contents of the complaint. There is also statement of Nana Maruti More who is distant relative of the complainant who also states about ill-treatment and harassment to the deceased Sujata by her family members. There is also statement of one Shivnath Sakharam Jadhav who also supports the [ 24 ]

prosecution story. There is post-mortem report on record.

. There is also certificate by Dr.Tambe Hospital, New Akole Road, Tq. Sangamner Dist. Ahmednagar. The said certificate mentions that the deceased Sujata came to hospital on 25th April 2008 at about 10.15 hours and doctor noticed injuries on the right thigh of the deceased.

. The prosecution has also collected other evidence on 13.12.2008 in the nature of statements of Rambhau Martand Rahane, Santosh Sambhaji Rahane, Sitaram Bhaurao Rahane, but said statements are subsequent to granting bail in favour of the respondents-accused. . The I.O. has also collected invitation card of marriage between Rajendra and victim Sujata. The said card disclosed that marriage was on 9th May 2002 at 12.38 p.m. There is also copy of certificate issued by Maharashtra Council of Para-Medical Sciences which discloses that the deceased Sujata had obtained Diploma of Examination in Nursing. There is also certificate issued by Maharashtra Council of Para Medical Sciences Mumbai (Br.) Ahmednagar. There is also School Leaving Certificate, mark sheet of [ 25 ]

Secondary School Certificate on record. There is extract of police diary and other statements of Annasaheb Rajaram Kale, Dnyandeo Bhimaji Rahane and supplementary statement of Rohidas Namdeo Pokharkar. . On going through the evidence collected by the prosecution from 1.12.2008 till 11.12.2008, it is clear that, the statements of number of persons are recorded by the concerned Investigating Officer. There is also certificate issued by Dr.Tambe Hospital which shows that in the month of April 2008 there were injuries on the right thigh of Sujata and for that purpose she was hospitalised in the said hospital. There is other evidence collected by the prosecution. The complaint discloses continuous ill-treatment, harassment and physical and mental torture to deceased Sujata by the father-in-law, mother-in-law, husband and brother of the husband. . Coming to the order of the Additional Sessions Judge, Sangamner by which bail was granted to the respondents-accused, one thing is clear that the concerned Judge has not taken into consideration statements of various witnesses recorded by the Investigating Officer while granting bail. There is also no reference to the fact that marriage took [ 26 ]

place in the month of May 2002 and death occurred within 7 years from the marriage. There is no reference to the certificate issued by Dr.Tambe hospital. The Additional Sessions Judge who granted bail has not taken into consideration entire allegations in the complaint in the light of statements of various persons recorded by the I.O. The Additional Sessions Judge has given cryptic reasons while granting bail in para 6 of the order which reads thus:

“6. I have considered rival submissions in

the light of police papers. It is the case

of the prosecution that death of Sujata was

suicidal. There is no specific allegation

of dowry related demand having been made

soon before death of Sujata. As per P.M.

report, two injuries found on the body of

Sujata were post-mortem. It appears that

no complaint of ill-treatment was made by

Sujata or her relatives before the

incident, dated 1.12.2008. Offences are

not punishable with death or imprisonment

for life. Investigation has progressed

considerably. There are no cogent grounds

to deny bail”.

. On the above mentioned reasoning in para 6 the Judge granted bail to the respondents-accused. The incident in question took place on 1.12.2008. The bail application was entertained by the Judge and bail was granted to the respondents-accused on 11.12.2008. In view of the various pronouncements of [ 27 ]

the Apex Court as stated in foregoing paras, the Judge should have taken into consideration the gravity and nature of offence into consideration. The Judge has also not taken seriousness of the offence into consideration. On perusal of the reasons given by the Judge it appears that the Judge has granted bail observing that there is no specific allegations of dowry related demand having been made soon before death of Sujata.

. The Judge should have taken into consideration contents of the complaint in detail in the light of statements of the witnesses recorded by the I.O. and then only should have commented on demand of dowry. . The learned Judge has cursorily referred to the injury certificate, post-mortem report and mentioned that two injuries found on the body of Sujata were post-mortem.

. The Judge has further observed that no complaint of ill-treatment was made by Sujata or her relatives before the incident and, therefore, application for bail deserves favourable consideration. Such reasoning on the face of the contents of the complaint is not sustainable. The complainant has [ 28 ]

disclosed in the complaint that with the hope and expectation that things would improve and marital life of the daughter Sujata should not get disturbed on account of filing criminal complaint, the complainant restrained himself in not lodging any complaint in the police station.

12. The Additional Sessions Judge, Sangamner has taken note of arguments advanced by the counsel appearing for the complainant in para 5 of the order. The learned Judge in para 5 has mentioned the grounds on which application is opposed which are as follows: . “(i) Death of Sujata occurred within 7 years of marriage. Presumption u/s 113-A, Evidence Act would arise.

. (ii) In F.I.R. there is reference to incident of April 08. this would show that there was severe and persistent ill-treatment to Sujata by the applicants. . (iii) Death of Sujata occurred when she was residing with the applicants.

. (iv) Contents of A.D.intimation would indicate that conduct of applicant no.1 was suspicious.

[ 29 ]

. (v) There is strong prima facie case against all the applicants”.

. The first ground on which applicant for bail was opposed has not been properly considered by the Additional Sessions Judge. The Additional Sessions Judge should have taken into consideration Section 113-A of the Evidence Act and should have proceeded to decide the application for bail. The provisions of Section 113-A of the Evidence Act reads as follows:

Presumption as to abetment of suicide by a married woman. 113A. When the question is whether the commission of suicide by a woman had been abetted by her husband or any relative of her husband and it is shown that she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the Court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband. Explanation: For the purposes of this section, [ 30 ]

“cruelty” shall have the same meaning as in section 498A of the Indian Penal Code (45 of 1860).

. Coming to the second ground that there was severe and persistent ill-treatment to Sujata by the applicants-respondents. The learned Additional Sessions Judge has not properly appreciated this contention of the complainant. The third contention of the complainant that death of Sujata occurred when she was residing with the applicants-respondents assumes importance that is also not properly considered by the learned Judge. The fourth ground which was raised by the complainant while granting the bail application was in respect of conduct of the respondent no.1 was suspicious as recorded in A.D. intimation and same has not been properly considered by the learned Judge. The learned Judge has not properly considered the case in its proper perspective in the light of contents of the complaint and evidence collected by the prosecution and by cryptic order granted bail in favour of the respondents/accused on 11th day from the date of incident by concluding that investigation is progressed contrary to the fact that investigation was in progress and not progressed. The observations of the learned Judge that merely offence is not [ 31 ]

punishable by death or life and, therefore, bail application deserves favourable consideration is not proper and is indirect conclusion that since the offence is not punishable by death or life and, therefore, offence is not of serious nature requires to be taken note of and for all these reasons the order of the Additional Sessions Judge granting bail in favour of the respondents is in utter disregard to the various pronouncements of the Apex Court as well as provisions of Section 439 of Cr.P.C. The learned Judge has not taken into consideration entire evidence collected by the prosecution till bail was granted.

. The learned Additional Sessions Judge in his order has observed that ‘it appears that no complaint of ill-treatment was made by Sujata or her relatives before the incident dated 1.12.08’, and thereby the concerned Judge has overlooked the provisions of Section 113-B of the Evidence Act.

. The learned Judge further observed that offences are not punishable with death or imprisonment for life and investigation has progressed considerably and, therefore, application for bail deserves favourable consideration is also not proper. The [ 32 ]

alleged incident took place on 1.12.2008 and bail is granted on 11.12.2008. the investigation was in progress and said was not progressed considerably as recorded by the Judge while granting bail. The order passed by the Additional Sessions Judge not only suffers from non-application of mind, however, it does not refer to the statements of the witnesses recorded by the I.O. and other material collected by the prosecution till 11.12.2008. The Judge has also taken into consideration irrelevant material and granted bail by cryptic order. Therefore, on the whole if the reasoning given by the Judge while granting bail is perused, it appears from the order passed by the Additional Sessions Judge that irrelevant material weighed with the Judge and by cryptic order and general observations he came to the conclusion to grant bail. The Additional Sessions Judge has totally ignored the nature and gravity of the offence contrary to one of the important factor to be considered while granting bail as held by the Honourable Supreme Court in number of judgments and recently in case of Narendra K.Amin (DR.) v. State of Gujarat and another, reported in (2008)13 Supreme Court Cases 584.

584 The Hon’ble Supreme Court referring to earlier judgment of the Apex Court has observed that the nature of accusation and the severity of [ 33 ]

punishment in a case of conviction and the nature of supporting evidence should be taken into consideration while granting bail. The learned Judge in utter disregard to the law laid down by the Apex Court in case of Puran vs. Rambilas and another, cited supra, has granted bail by ignoring material and evidence on record and without giving sufficient reasons. The Judge has not applied his mind to the law laid down by the Supreme Court in case of Salim Khan vs. Sanjai Singh and another, cited supra, in which the Apex Court held that the Court granting bail should take relevant material into consideration while releasing the accused. The Court considering the bail application also to consider all the statements recorded under section 161 Cr.P.C., examine the gravity of the offence. The Sessions Judge should have indicated at least sufficient reasons, not elaborate but touching to the evidence collected by the prosecution from 1st December 2008 till bail is granted to the respondents-accised. The Apex Court in case of Sudha Verma v. State of U.P. and another, cited supra, has observed in para 10 that “the reasons need not be very detailed or elaborate, list it may cause prejudice to the case of the parties, but must be sufficiently indicative of the process of reasoning leading to the passing of [ 34 ]

the impugned order.”

13. It is not necessary to go into the exercise of reappreciation of the evidence. It is suffice to state that the impugned order granting bail is passed not taking into consideration the relevant material and after examining the entire evidence collected by the prosecution. The bail is granted without fully referring to the evidence collected by the prosecution and attending circumstances. The Hon’ble Supreme Court in case of Brij Nandan Jaiswal v. Munna Alias Munna Jaiswal and another, reported another in

(2009) 1 Supreme Court Cases 678 has reiterated that the Judge granting bail more particularly in serious cases must give reasons justifying the grant of bail. It is held that the complainant can always question the order granting bail if the said order is not validly passed. The Court further observed that it is not as if once a bail is granted by any court, the only way is to get it cancelled on account of its misuse and bail order can be tested on merits also. The Apex Court on facts held, complainant could question the merits of the order granting bail. The Apex Court without expressing anything on the merits of the bail application directed the High Court in that case to decide the application again.

[ 35 ]

14. In the instant case though, I have refrained myself expressing anything on merits, however, taking into consideration law provisions and various pronouncements of the Hon’ble Apex Court endeavour is made only to indicate total evidence collected by the prosecution, nature and seriousness of the offence but without touching to the merit. I have broadly referred to the total evidence collected by the prosecution in the nature of witnesses, panchanama, PM report, certificate issued by Tambe Hospital, wedding card and other evidence collected by the prosecution.

15. I have not touched to the merits of the evidence collected by the State, however, taking into consideration the law laid down by the Hon’ble Apex Court and the provisions of section 439 of the Cr.P.C., I am of the considered view that, the impugned order passed by the Additional Sessions Judge, Sangamner granting bail is not sustainable, same is set aside. The respondent nos.1 to 4 original accused, namely, Rajendra Karbhari Rahane, Ajay Karbhari Rahane, Subhadra Karbhari Rahane and Karbhari Dhondiba Rahane shall immediately surrender within ten days from today. If they do not [ 36 ]

surrender, non-bailable warrant shall be issued against them.

16. After their surrender in case the bail application is filed by them, same shall be considered and disposed of by the concerned court within one week from its filing. While deciding bail application the concerned Court must take into consideration evidence collected by the prosecution and other attending circumstances and keep in mind various pronouncements of the Apex Court as well as High Court on subject and after hearing both the sides decide the application in accordance with law. It is made clear that this Court has not touched to the merits of the matter and concerned court can proceed to decide fresh application in accordance with law.

17. With these observations, application for cancellation of bail is allowed and disposed of.

18. Copy of this order should be supplied by Registry to the counsels appearing for the respective parties by tomorrow afternoon and submit report to this Court on 21.4.2009.

[ 37 ]

(S.S.SHINDE)

JUDGE

cnd/cria335.09

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