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2015 DIGILAW 410 (BOM)

Shamin Akhtar v. State of Maharashtra

2015-02-10

PRASANNA B.VARALE

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Judgment :- 1. Heard Mr. Anil S. Mardikar, the learned Senior Counsel with Mr. S.G. Joshi, the learned Counsel for the applicant. 2. The applicant is before this Court seeking her enlargement on bail in connection with Crime No.150/2014, registered at City Police Station, Pusad, District Yavatmal for the offences punishable under Sections 302, 304-B and 498-A, 323, 504 and 506 read with Section 34 of the Indian Penal Code and under Sections 3 and 4 of the Dowry Prohibition Act. 3. The report lodged at the instance of brother of the victim-Sunaira shows that the marriage of the victim was solemnized with Khalik Sayyad on 20/06/2013. Though it was agreed to pay an amount of Rs.30,000/- towards dowry, the brother and other relatives were unable to comply the demand at the time of marriage. The sum and substance of the report is, initially for a period of two months, though victim Sunaira was treated well, thereafter she was subjected to ill-treatment at the hands of her matrimonial relations namely her husband, mother-in-law and sister-in-law i.e. the present applicant. The sister of complainant viz. Sunaira told about the ill-treatment suffered by her on the occasions, when she used to visit her parental home. Though an attempt was made to seek intervention of some relatives, but the same was not fruitful. On 18/04/2014, an information was received by the complainant-Abdul Rahim that his sister was subjected to burn injuries. He rushed to Kasturba Hospital, Wardha. At the relevant time i.e. at 01:30 in the night, Sunaira was not in a position to speak. On the next day at about 09:00 a.m., Abdul again visited his sister and it was informed to him that on 18/04/2014, mother-in-law and sister-in-law (applicant) instigated the husband of Sunaira. Her husband beat her and left the home at about 03:00 p.m. The mother-in-law of the applicant dragged Sunaira towards bathroom, tied a scarp (Duppata) and poured oil over the person of Sunaira and the applicant by igniting a match stick, set her on fire. 4. The learned Senior Counsel Mr. Mardikar submits that in the process of investigation, various steps are taken and the investigation was concluded by filing charge-sheet. He submits that the applicant was arrested on 2nd May, 2014 and since then she is behind the bars. Mr. 4. The learned Senior Counsel Mr. Mardikar submits that in the process of investigation, various steps are taken and the investigation was concluded by filing charge-sheet. He submits that the applicant was arrested on 2nd May, 2014 and since then she is behind the bars. Mr. Mardikar submits that the investigating agency in the process of investigation recorded as many as four dying declarations. He in his detailed submissions, by inviting my attention to these dying declarations, the namely dying declaration recorded at private hospital on 18/04/2014 at 05:35 p.m and dying declaration recorded on 19/04/2014 at Kasturba Hospital, Sewagram initially at 12:30 p.m. and subsequently on 05:20 p.m., vehemently argued that these four dying declarations give different account in each dying declaration. Mr. Mardikar submits that in the first dying declaration endorsed by the Medical Officer, it is clearly stated that the victim was not willing to give any statement, whereas in the next dying declaration, she states that it was an accident and then the account is changed to the effect of an alleged role played by mother-in-law and the applicant and then gives a dying declaration adding the ill-treatment since marriage and the incident of setting the victim on fire. Mr. Mardikar submits that though at this stage, this Court may not critically assess the material, but it is now the settled position of law that if there are multiple dying declarations, wholesome effect of these dying declarations will have to be considered. It was the submission of Mr. Mardikar that the prosecution cannot choose and pick a dying declaration in support of its case. Mr. Mardikar then submits that when the victim was admitted in Kasturba Hospital, Sewagram, her general condition was poor and as such the dying declaration attributing a role to the applicant and mother-in-law may not be free from doubts. Mr. Mardikar then submits that the other material collected by the investigating agency is in the form of statements of witnesses and their versions are only the hearsay account of an ill-treatment caused to the victim. Mr. Mardikar also submits that the applicant is now a middle aged lady mainly occupying with household activities. Mr. Mardikar then submits that the other material collected by the investigating agency is in the form of statements of witnesses and their versions are only the hearsay account of an ill-treatment caused to the victim. Mr. Mardikar also submits that the applicant is now a middle aged lady mainly occupying with household activities. He submits that as all the necessary material is collected by the investigating agency and the applicant is behind the bars for a period of more than a year, if the applicant is enlarged on bail, there is noting apprehension that the applicant would indulge in any such activity either delay the trial or cause hindrance in the process of trial. 5. Mr. S.B. Ahirkar, the learned A.P.P. vehemently opposes the application. He submits that the material is sufficient enough to establish the active role played by the applicant, who set the victim on fire. The learned A.P.P. further submits that the victim is not the sole person, who was subjected to such ill-treatment, but the material also shows that prior to this marriage with victim-Sunaira, Khalik Sayyad had performed a marriage with a lady by name Aafreen BaNo. He further submits that the statement recorded of Aafreen shows that Aafreen was also subjected to ill-treatment at the hands of her matrimonial relations including the applicant. 6. On considering the material, I find that there are divergent versions in the dying declarations recorded by the investigating agency. Without assessing and weighing of each dying declaration and the material collected by the investigating agency are not accepted at this stage. Suffice to say that these divergent versions at least raise an element of truthfulness in these versions. The dying declarations shows that the victim herself was not willing to give any statement but her unwillingness gradually turned into two detailed dying declarations attributing a lead role played by mother-in-law and the sister-in-law i.e. the applicant. Thus, there is considerable merit in the submission of Mr. Mardikar that these dying declarations will have to be looked in broader prospects. The applicant, who was arrested in the month of May, 2014, is behind the bars for a period of more than one year. The investigation is complete. Thus, there is considerable merit in the submission of Mr. Mardikar that these dying declarations will have to be looked in broader prospects. The applicant, who was arrested in the month of May, 2014, is behind the bars for a period of more than one year. The investigation is complete. There is nothing on record to show that the applicant is having any criminal antecedents nor there can be any apprehension that the applicant, who is normally engaged in household activities, would cause any hindrance in the process of trial. 7. Considering all these aspects, in my opinion, the learned Counsel for the applicant has made out the case. The apprehension of the State can be taken care of by imposing certain conditions. 8. In the result, the application is allowed. The applicant be released on bail on her furnishing P.R. Bond in the sum of Rs.20,000/- (Rupees Twenty Thousand Only) with one or two sureties in the like amount on the following conditions. i. The applicant to attend City Police Station, Pusad, District Yavatmal on every second and fourth Sunday of the month from 09:00 a.m. to 12:00 noon and a maintain diary of her attendance duly countersigned by the Police Station Officer, till commencement of the trial. ii. The applicant shall not tamper with the evidence nor commit any act such as contacting the prosecution witnesses or pressurize them. iii. The applicant to submit her residential address and contact numbers, such as phone/mobiles numbers, to the investigating agency or in case of change. iv. In case the applicant is moving out of the area of City Police Station, Pusad, she shall take permission and inform the concerned Police Station about her visit to other place. In case of any breach of the conditions by the applicant, the State would be at liberty to move this Court. Needless to say that these are the observations of the Court while deciding the present bail application and the learned Sessions Judge may not be influenced by these observations while conducting the trial. The application is disposed of as such.