Bombay High Court
Shalubai Mahendrasing Girase vs The State Of Maharashtra on 5 January, 2021
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
ANTICIPATORY BAIL APPLICATION NO.1140 OF 2020
Shalubai Mahendrasing Girase
Age: 42 Yrs., occu. Household,
R/o Darane, Tq. Shindkheda,
Dist. Dhule. = APPLICANT
VERSUS
The State of Maharashtra
Through the Inspector,
Police Station, Sindkheda,
Tq. Shindkheda, Dist.Dhule. = RESPONDENT
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Mr.BR Warma,Advocate for Applicant;
Mr.VM Kagane,APP for Respondent-State.
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CORAM : SMT.VIBHA KANKANWADI,J.
DATE : 5th January, 2021.
PER COURT :-
1. Present application has been filed for
getting pre-arrest bail by the applicant, who is
apprehending her arrest in connection with CR No.
81/2019 dated 30.8.2019 registered with Sindkheda
Police Station, District Dhule, for the offences
punishable under Sections 302, 307, 323, 504, 506
and 34 of Indian Penal Code.
2. Heard learned Advocate Shri BR Warma for
the applicant and learned APP Shri VM Kagane for
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Respondent-State.
3. It has been vehemently submitted on
behalf of the applicant that the FIR has been
lodged against about 11 persons and thereby entire
family has been roped in. It appears that
initially the offence was registered under Section
307 and other Sections of IPC when the statement of
the deceased was recorded in hospital. Perusal of
the FIR would show that as regards the present
applicant is concerned, it is stated that she is
cousin sister-in-law of the deceased and though the
applicant is residing at the back lane of the
matrimonial house of the deceased, it is stated
that she had also come to the house. It is the
statement of the informant-deceased that there used
to be quarrels between the accused persons and the
deceased and they used to assault her. The
disputes started at about 12.30 pm on 29.8.2019
when the father-in-law of the deceased told that he
already had his lunch in the house of cousin
mother-in-law of the deceased. He started abusing
her when the deceased uttered that since he has
taken the lunch outside, the preparation of food
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made by her would be wasted. It is her say that
thereafter, the husband, mother-in-law, brother-in-
law, sister-in-law assaulted her and then paternal
aunt, cousin brothers, present applicant ,cousin
sister of the husband of the deceased, came and
they also started assaulting her. When the father-
in-law told that she should not be left alive,
paternal aunt brought kerosene tin and then present
applicant caught hold of her and another paternal
aunt put kerosene on her person. Cousin sister-in-
law ignited the match-stick and set her to fire.
She received the burn injuries and then she was
admitted to the hospital. Therefore, taking into
consideration the role attributed to the present
applicant, her physical custody is not required.
So also, the investigation is complete and charge
sheet has been filed on 19.2.2020.
4. Per contra, the learned APP strongly
opposed the application and submitted that the
present applicant was absconding and, therefore,
she could not be arrested. Specific role has been
attributed to the applicant that she had caught
hold of the deceased-informant and as she
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facilitated in pouring of kerosene by another lady;
igniting the match stick and setting her ablaze,
the role played by the present applicant is more.
Ultimately, the informant succumbed to the injuries
on 30.10.2019. The post-mortem report gives
probable cause of death as "complications following
burns". The statements of the witnesses would show
that the deceased was harassed since marriage by
the husband and his family members and, therefore,
custodial interrogation of the present applicant is
required.
5. At the outset, it is to be noted that
though it has not come in the FIR as to when the
deceased got married, it has come in the statement
of her father - Ratansingh Rajput. He has stated
that the deceased got married in March 2012. She
has one son. But, it appears that since 2012 till
29.8.2019, there was no complaint of ill-treatment
against anybody lodged by her.
6. No doubt, the statement of the informant
was recorded on 29.8.2019 and she died on
30.10.2019, under such circumstance, whether the
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said statement can be considered under Section 32
of the Indian Evidence Act, in respect of the
offence Section 302 of IPC, which would be
considered at the conclusion of the trial. Now,
the investigation is complete and charge sheet has
been filed. As regards the present applicant is
concerned, charge sheet is filed under Section 299
of Cr.P.C. It will not be out of place to mention
here that Section 299 of Cr.P.C. does not enable an
Investigating officer to file a charge sheet per
se, but it is an enabling provision for recording
of evidence in absence of an accused if it is
proved that the said accused is absconding.
Perusal of the charge sheet, which has been filed
on record, would show that there is absolutely no
evidence that is produced which would indicate that
attempts were made to arrest the present applicant
and to get her declaration as `absconding'. The
Investigating Officer was called and it was tried
to be extracted from him as to how he could file
the charge-sheet under Section 299 of Cr.P.C.
against the present applicant without producing the
proof about her being absconding; he has tried to
show certain documents, which according to him, are
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the Station Diary entries. After perusal of those
documents, this Court was not absolutely convinced
and satisfied with those documents. The present
applicant has stated that she is a lady doing
household work and she resides in the back lane of
the matrimonial home of the informant and this can
be also seen from the FIR itself wherein it is
stated that she resides in the same lane. Now, the
documents, which were brought by the Investigating
Officer showed that he had made enquiries with the
relatives of the applicant and they did not give
proper information about the applicant. Whether,
he had intention to say that he had made enquiries
with other accused persons, was not clear and that
is why this Court formed the opinion that those
documents are absolutely not proper and might have
been brought just to show this Court that something
has been done. Under such circumstance, this Court
is of the opinion that though the charge sheet has
been filed under Section 299 of Cr.P.C. against the
present applicant, there appears to be no proof
that she was absconding and that point need not be
taken into consideration which would have otherwise
disentitled the present applicant from claiming the
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discretionary relief.
7. As aforesaid, as regards the role that is
attributed to the present applicant is concerned,
it is stated that she had caught hold of the
deceased and then the deceased was put to fire. The
said incident is stated to have taken place inside
the house and it has been pointed out by the
learned Advocate representing the applicant that
the spot panchanama does not show any signs in that
respect. What have been recovered from the spot of
occurrence are only half-burnt clothes; kerosene
tin and one match-stick box. If we peruse the post
mortem report, it can be seen that the deceased had
sustained 52% of burns. If this is the fact, then
how there are no traces of burns at the place is a
question. Now, when the investigation is complete,
nothing is required to be recovered from the
applicant, the applicant deserves to be released on
bail. Hence, following order, -
ORDER
i. The Anticipatory Bail Application stands allowed. ii. In the event of arrest of the ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 20:32:45 ::: (8) applicant in connection with CR No.81/2019 dated 30.8.2019 registered with Sindkheda Police Station, District Dhule, for the offences punishable under Sections 302, 307, 323, 504, 506 and 34 of Indian Penal Code, she be released on PR and SB of Rs.15,000/-. iii. The applicant shall not indulge in any criminal activity nor shall she tamper with the evidence of the prosecution.
(SMT. VIBHA KANKANWADI) JUDGE BDV ::: Uploaded on - 07/01/2021 ::: Downloaded on - 06/02/2021 20:32:45 :::