28.BA.1445.19.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO.1445 OF 2019
1. Vijaykumar s/o Bhimrao Gaikwad,
Age :35 years, Occu: Labour
2. Bhimrao s/o Zatinga Gaikwad,
Age : 60 yrs. Occ. Labour
3. Naginbai w/o. Bhimrao Gaikwad,
Age : 50 years, Occupation: Household,
All R/o. Usturi Tal. Nilanga Dist. Latur. … Applicants/accused
VERSUS
The State of Maharashtra
through the in-charge Police Officer
P.S. Kasarsirsi, Nilanga,
District Latur (MH) … Respondent
…
Advocate for Applicants : Mr. Shaikh Ashraf Patel
APP for Respondent/State: Mr. V.S. Badakh
Advocate Assist to PP : Mr. Maney V. M.
…
CORAM : MANGESH S. PATIL, J.
DATE : .03.03.2020
PER COURT :
This is an application under Section 439 of the Code of Criminal
Procedure after filing of the charge sheet in Crime No.65/2019 (Sessions
Case No.32/2019) registered with Kasar Shirsi Police Station, District Latur
for the offence punishable under Sections 302, 498A, 323, 504 read with
Section 34 of the Indian Penal Code.
2. The applicant no.1 is the husband and the applicant nos. 2 and
3 are the parents in law of the deceased. It is alleged that on 25.03.2019
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applicant no. 1 started assaulting her under the influence of liquor. The
applicant nos. 2 and 3 exhorted him. They caught hold her and thereafter
the husband poured kerosene on her and set her on fire. She was shifted to
a hospital where her statement was recorded by a police constable on duty
which was subsequently treated as FIR and the crime was registered. On the
next day another statement of her was recorded by an Executive Magistrate.
She succumbed to the burn injuries on 15.04.2019. The applicants were
arrested. Investigation was carried out and in due course of time, the
charge sheet has been filed.
3. The learned advocate for the applicants submits that the
investigation is already over. The trial is not likely to get over soon. There
are inconsistent dying declarations and the applicants may be released on
bail subject to suitable conditions.
4. The learned APP duly assisted by the learned advocate for the
original informant opposes the application. He submits that there are
specific allegations attributing role to each of the applicants in the dying
declaration recorded by the Executive Magistrate. Even there is a statement
of a 9 year old son of the applicant no. 1 and the deceased recorded under
Section 164 of the Code of Criminal Procedure who has also specifically
narrated as to how the incident had occurred. The applicant nos. 2 and 3
caught hold his mother and the applicant no. 1 thereafter set his mother on
fire by pouring kerosene. The offence is punishable up to death. Releasing
the applicants is likely to prejudice the trial. The application may be
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rejected.
5. After having heard both the sides when this Court expressed its
disinclination to grant bail to the applicant no.1 husband, the learned
advocate for the applicants, on instructions, seeks leave to withdraw the
application to his extent.
6. As far as the applicant nos. 2 and 3 are concerned, in the dying
declaration which has been treated as FIR the role attributed to the
applicant nos. 2 and 3 is about exhortation. It is only in the second dying
declaration recorded on the next date after the maternal aunt and parents of
the deceased had met her that she has come out with an improvised version
about the applicant nos. 2 and 3 having caught hold her and thereafter the
applicant no. 1 having poured kerosene and set her on fire. True it is that
the 9 year old son of the deceased has specifically stated about the
grandfather having caught hold the hands and the grandmother having
caught hold legs of his mother. However, his statement has been recorded
under Section 164 after about a month of the incident. Again, the papers in
the charge sheet reveal that there was a dispute between the couple i.e. the
applicant no.1 and the deceased for variety of reasons and it is being alleged
that the applicant nos. 2 and 3 only instigating him when he was ill treating
her. Even in the application preferred by her under the provisions of
Protection of Women from Domestic violence Act, she had not made specific
and precise allegations against the applicant nos. 2 and 3.
7. Considering all the aforementioned facts and circumstances,
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when the trial is not likely to get over soon, the applicant nos. 2 and 3
deserves to be released on bail, more so, when the child is already in the
custody of his maternal aunt.
8. The application is partly allowed. The applicant nos. 2 and 3 be
released on bail on their executing personal recognizances for an amount of
Rs.25000/- each and furnishing a solvent surety in the like amount each
subject to following conditions:
a) They shall not try to contact the child or witnesses till
conclusion of the trial.
b) They shall not tamper the evidence or influence the witnesses.
9. The application to the extent of the applicant no. 1 is disposed of as
withdrawn.
10. Bail before the trial court.
(MANGESH S. PATIL, J.)
habeeb
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