Bombay High Court
Manish Ashok Bendwal vs The State Of Maharashtra on 12 October, 2021
Author: M.G. Sewlikar
Bench: M.G. Sewlikar
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
BAIL APPLICATION NO. 633 OF 2021
Manish Ashok Bendwal
Applicant
Versus
The State of Maharashtra Respondent
Mr. Satej S. Jadhav, Advocate for the applicant.
Mr. S.D. Ghayal, APP for respondent/State.
CORAM : M.G. SEWLIKAR, J.
DATE : 12th October, 2021.
PER COURT :
1. This is an application under Section 439 of the Code of
Criminal Procedure for releasing the applicant on bail.
2. It is the prosecution case that the deceased Meenakshi
was the wife of the applicant. Their marriage was performed in the
year 2013. On 13th June, 2019, the applicant had come to village
Pachora with his auto rickshaw. Both of them left for Jalgaon at 8.00
pm. The applicant asked the deceased as to whether she had
brought money from her parents to which she answered in the
negative. Thereupon, the applicant beat the deceased in the auto
rickshaw. At 12.00 in the night, both of them reached their home at
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Jalgaon. Applicant picked up quarrel with the deceased in the house
also. Thereafter, the applicant poured diesel on the person of the
deceased and set her on fre. The deceased came out of the house
screaming. Thereafter, she was admitted in Apex Asian Critical Care
Hospital, Jalgaon by the applicant. From there, she was shifted to
Civil Hospital, Jalgaon.
3. On the basis of Dying Declaration given by the deceased,
First Information Report was registered under Section 307, 498A,
323, 504 read with Section 34 of the Indian Penal code. The deceased
died on 3rd July, 2019. Therefore, the offence was converted into
Section 302 of the Indian Penal Code.
4. Heard Shri Jadhav, learned counsel for the applicant and
Shri Ghayal, learned APP for the State.
5. Learned counsel Shri Jadhav submits that there are four
Dying Declarations which are inconsistent with each other. In the
private hospital i.e. Apex Asian Critical Care Hospital, Jalgaon, the
deceased gave Dying Declaration that she died because of stove
explosion. He submits that the second Dying Declaration is dated 1 st
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July, 2019 recorded by ASI, Jalgaon City Police Station. In this
Dying Declaration, the deceased implicated the applicant to be the
author of the crime. Third Dying Declaration is also of even date
which was recorded at 10.15 pm. He submitted that in this Dying
Declaration the deceased had stated that she got burn injuries
because of fall of oil. Fourth Dying Declaration is recorded while
giving history in the Civil Hospital, Jalgaon. He submits that in Civil
Hospital, Jalgaon, while recording history it is stated that the
deceased sustained burn injuries because of stove explosion.
Learned counsel Shri Jadhav submits that all these Dying
Declarations are inconsistent with each other. Therefore, the
applicant is entitled to be released on bail.
6. Learned APP Shri Ghayal submits that there is no
inconsistency in the Dying Declarations. He submits that in the
history recorded in Apex Asian Critical Care Hospital, Jalgaon, there
is nothing on record to show that it was the history given by the
patient herself. The history given was by the husband. He further
submits that in the second Dying Declaration, the deceased has
specifcally implicated the applicant. He submits that she has given
detailed account of the incident in the Dying Declaration on the basis
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of which First Information Report came to be lodged. He further
submits that in answer to question No. 8 in the third Dying
Declaration, the deceased has stated that the incident took place
because of fall of oil but in answer to question No. 10, she has stated
that it was done by her husband as her mother-in-law stated that she
is not a good natured person and the applicant should desert her.
He submits that the fourth Dying Declaration is not inconsistent. In
the fourth Dying Declaration also, while recording history, it is
mentioned as burn due to stove. The medical papers of Civil
Hospital, Jalgaon, do not show that the history was given by the
deceased. Learned APP further submits that spot panchanama does
not show that there was stove explosion. Stove is there and it is
perfectly in good condition. He, therefore, prays for rejection of the
application.
7. Charge-sheet is fled. The incident took place on 30 th
June, 2019. The deceased was immediately shifted to the hospital.
Case papers of Apex Asian Critical Care Hospital, Jalgaon, are
produced on record which indicate that the deceased sustained
injuries of thermal burn at home at around 9.15 am of 30 th June,
2019 due to accidental explosion of stove while cooking. Papers do
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not show that the history was given by the husband or any other
relative of the husband. Therefore, at this stage, it can be inferred
that this declaration was given by the deceased herself. Second
Dying Declaration is dated 1st July, 2019. It was recorded by the
Sub-Inspector between 9.30 pm and 10.10 pm. In this Dying
Declaration, she implicated her husband/applicant. She stated in
this Dying Declaration that the applicant poured diesel on her person
and set her on fre. Third Dying Declaration is recorded by the
Executive Magistrate between 10.15 pm and 10.28 pm in which the
deceased stated that the incident took place because of fall of oil. In
answer to the question as to on whom she had suspicion, she stated
that it was done by her husband. The fourth Dying Declaration is
recorded in the Civil Hospital, Jalgaon, xerox copies of which are
produced by the learned APP because of the order passed by this
Court. They show that the deceased sustained burn injuries by stove
while cooking at home.
8. Apparently, there are four Dying Declarations. Out of
them, two are absolving the applicant and two are implicating the
applicant. During trial only it will be clear whether there is any
consistency in these Dying Declarations. This position will be clear
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only after recording of evidence. In view of this, case for bail is made
out. Hence, the following order :-
ORDER
i) Application is allowed.
ii) Applicant be released on PR Bond of
Rs.75,000/- (Rs. Seventy Five Thousand only) with one solvent surety in the like amount in connection with Crime No. 89/2019 registered with Jalgaon City Police Station, Jalgaon, for the offences punishable under Sections 302, 307, 498(A), 323, 504, 109 read with Section 34 of the Indian Penal Code.
iii) Application is disposed of.
iv) It is clarifed that the observations made in the above order are restricted to the decision of this application only and the trial Court shall not get influenced by the same and can come to its independent conclusion during trial.
( M. G. SEWLIKAR ) Judge dyb ::: Uploaded on - 14/10/2021 ::: Downloaded on - 15/10/2021 00:03:21 :::