Bombay High Court
Sandip Rajaram Dhadve vs State Of Mah., Thr. P.S.O. P.S. Risod, ... on 30 September, 2019
Author: V. M. Deshpande
Bench: V.M. Deshpande
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR.
CRIMINAL APPLICATION (ABA) NO.592 OF 2019
Sandip Rajaram Dhadve Vs. State of Maharashtra, through PSO P.S. Risod,
Tq. and Dist. Washim.
_______________________________________________________________________
Office Notes, Office Memoramda of Coram,
appearances, Court's orders of directions Court's or Judge's orders.
and Registrar's Orders.
Mr. Anil Mardikar, Senior Advocate assisted by Mr. Ved
Deshpande and Mr. Rishabh Khemukha, Advocate for
applicant.
Mr. S.S. Doifode, A.P.P. for non applicant-State.
CORAM : V. M. DESHPANDE, J.
DATED : SEPTEMBER 30, 2019
1. Heard Mr.Mardikar,learned Senior Counsel for
applicant and Mr. Doifode, learned Additional Public
Prosecutor for non applicant-State.
2. Applicant is apprehending his arrest in
connection with Crime No.7/2019 registered with Police
Station, Risod, Dist. Washim for an offence punishable under
Sections 143, 147, 148, 302, 506 of the Indian Penal Code.
3. The learned Senior Counsel for the applicant
submitted that at this stage it could not be said convincingly
said that the deceased Madan died homicidal death. He,
therefore, submitted that looking to the fact that
investigation is over and challan is presented before the
competent Court and the applicant, in view of the order
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dated 29.08.2019, has attended the police station and joined
investigation, the applicant be released on pre-arrest bail.
4. Per-contra, it is the submission of the learned
Additional Public Prosecutor that the present application is a
second application for pre-arrest bail. His previous
application being Criminal Application (ABA) No.121/2019,
was rejected. Applicant could not claim fresh consideration
of his case by the Court. He submitted that custodial
presence of the applicant is necessary for investigating into
the matter further for tracing out the unknown assailants.
He, therefore, submitted that the application be rejected.
5. The incident in questioned has occurred in the
intervening night of 27.12.2018 and 28.12.2018 at village
Haral, taluka Risod, district Washim. According to the
prosecution, in the said incident, Madan son of Savitribai
was assaulted by present applicant and his two brothers and
three unknown persons. Madan died at Secura Hospital at
Washim during his treatment. Though the death occurred on
28.12.2018, first information report was lodged on
09.01.2019, therefore obviously there is a delay in lodging in
first information report. The delay is sought to be explained
by first informant herself in the report itself. According to the
explanation for lodging report at belatedly, it is stated in the
first information report that after assault by the accused
persons the first informant along with her son Vijay went
Police Station, Risod and tried to lodge report however that
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time it was informed by the Police Station Officer that after
receipt of the postmortem report, the offence will be
registered. It is also stated that though postmortem was
conducted, on two to three occasions she went along with
her son Vijay to Police Station, Risod however it was told
that postmortem report was not received and therefore the
Police Station Officer cannot register the offence. Therefore,
on 05.01.2019, she gave a representation to Superintendent
of Police, Washim wherein it was stated that if report is not
registered then she will sit on hunger strike on 07.01.2019.
Therefore on 09.01.2019 the Police Station Officer, Risod
asked her to lodge report and accordingly the report was
lodged. Normally, there would not have been any difficulty
to accept the explanation at this stage had the learned
Additional Public Prosecutor could point out the factum of
submitting the representation by the first informant to the
Superintendent of Police on 05.01.2019. After deliberation
on this issue, the learned Additional Public Prosecutor could
not point out the said representation to this Court.
Therefore, at least prima facie lodging of first information
report belatedly has its own impact while considering the
application for pre-arrest bail.
6. From the first information report, it is clear that
co-accused Kavita, wife of deceased Madan was released on
bail. Kavita used to reside separately in neighbourhood of
informant. According to the report, on 26.12.2018, deceased
Madan gave Rs.1200/- to Kavita and demanded Rs.50/- for
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his personal use. However, refusal on the part of Kavaita
resulted into quarrel in between them. According to the
prosecution case, Kavita then telephoned to her brother
including present applicant and hatched conspiracy to kill
Madan. According to the report, Madan himself heard the
said conversation and narrated the first informant and her
husband. Therefore, they asked Madan to sleep in their
house however has not given attention to them. He slept in
tractor-trolley which was parked outside the house of first
informant. According to the report, in between 12:00 to
12:30 in the night she heard noise of shouting. Therefore,
she opened the door and noticed the present applicant, co-
accused Vilas Dhadve including one Sunil and three
unknown persons along with Kavita. That time, on the say of
accused Kavita, present applicant, Vilas and Sunil dragged
Madan from the trolley and then thrown him on the stone.
At that time, the other persons assaulted by means of sticks,
kicks and fist blows. Though first informant pleaded that
Madan should not be assaulted, all the accused poured cold
water on Madan and assaulted. Thereafter Madan was
dragged till his house and in front of his house he was again
assaulted and then thrown in his house. According to the
report, when she tried to gain entry in the house of Madan
since he was thrown in the house by the accused persons, his
wife Kavita did not allow the first informant to enter in the
house. On the next day Kavita admitted Madan in the Secura
Hospital and ultimately he died.
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7. At the time of death of Madan in the hospital,
first informant or her son were not present. As per the
accidental death proceedings the death of Madan was in the
morning hours of 28.12.2018.
8. Insofar as submission of the learned Additional
Public Prosecutor for the State that present is the second bail
application and previously this Court has rejected his
application for pre-arrest, every accused is having right to file
successive bail applications for consideration if such accused
could point out to the Court change in the circumstance at
the time of consideration of the bail application. Admittedly,
the first bail application was rejected and at that time charge-
sheet was not filed or the entire investigation papers were
not placed before the Court as it could be seen from the
order dated 26.02.2019 (Coram:M.G. Giratkar, J.) and
application of the applicant was rejected only on the
statements made in the first information report.
9. In my opinion, filing of charge-sheet will
definitely be a change in the circumstance inasmuch as after
filing of the charge-sheet, the prosecution case is well
crystallized and it is always open for the accused to point out
the materials containing the in the charge-sheet for
consideration of his prayer for bail either pre-arrest or
regular.
10. Charge-sheet would show that on 07.01.2019
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Police Station Officer, Risod Dist. Washim gave a
communication to the Medical Officer of Secura Hospital,
Washim and sought information about the condition of the
patient (Madan) since his relatives have expressed suspicion.
In pursuant to the said, charge-sheet would show detailed
communications along with various reports of various tests
conducted at Secura Hospital. At page 144 of the compilation
there is an observation at the hands of doctor that the
deceased was alcoholic. This observation of the doctor also
gains corroboration from statement of Taramati, Satyabhan
and Sakharam, who are the neighbours of Madan that there
used to be quarrels in between deceased and his wife Kavita
on account of demand of money for consumption of liquor.
11. Learned Senior Counsel invited my attention to
page 160 of the compilation i.e. three documents of the
Secura Hospital which give the cause of death, which are
reproduced below:-
"Cause of death - chronic alcoholic c CVA (large Acuto
infarct in the Lt frento - Tempero - parieto occipital
Region & Thalamo Ganglia capsular region causing
mass effect c middine shift Rt by 1.5 cm c SDH is the
Lt fronto parietal convexity c coma c Aspiration
pneumonia c Respiratory failure c CRA"
He also invited my attention to CT Scan of brain
of the deceased which is available at page 162 of
compilation, findings of the said are as follow :-
"The study shows large acute infract in the left fronto-
tempero-parieto-occipital region and thalamo-ganglia
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capsular region causing mass effect and midline shift
right by 1.5 cm."
In CT Scan no fracture to the skull was noticed.
12. Postmortem findings allowed autopsy surgeon
to give opinion about death though final opinion is reserved
for receipt of viscera report. Though the said opinion is not
final. it appears corresponding to the opinion expressed by
the doctors at Secura Hospital about the cause of death of
deceased Madan.
Learned Senior Counsel pointed out Merriam-
Webster's Collegiate Dictionary, Eleventh Edition to point out
which is mean by infarct it is read as under -
"infarct : an area of necrosis in a tissue or organ
resulting from obstruction of the local circulation by a
thrombus or embolus."
He also pointed out from Harrison's Principles
of Internal Medicine, Volume II, 16 th Edition, what is mean
by Cerebral ischemia, it is read as under :-
"Cerebral ischemia is caused by a reduction in blood
flow that lasts longer than several seconds.
Neurologic symptoms are manifest within seconds
because neurons lack glycogen, so energy failure is
rapid. "
13. The pathological reports of Madan are also
available in the charge-sheet. The tests were conducted at
Secura Hospital and blood test report is at page 141 of the
compilation and it shows that at the time of conducting
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pathology test, observation of hemoglobin was found as 4.1
whereas reference range is 12.5 to 17.5.
14. It is to be noted that initially the brother of the
present applicant by name Sunil was also dragged into first
information report. Not only he was dragged but there were
specific allegations against Sunil like the present applicant.
However, during the course of investigation the investigating
officer found that said Sunil who is working as driver in the
Maharashtra State Road Transport Corporation was far away
from village Haral and therefore he was discharged and no
charge-sheet was presented against him. That shows that the
first informant is having the tendency of implicating and
roping the brother of her daughter-in-law falsely.
15. As per first information report the deceased was
assaulted brutally however except one abrasion on the back,
there is no surface injury. Even there is no corresponding
injury to the head leave apart that there is no fracture to the
skull though the deceased was thrown on a 10 kg. stone as
per the prosecution which is seized from the spot.
16. Worth to mention that though first information
report it was also reported that 2-3 unknown persons also
assaulted on deceased by means of sticks. However, the
charge-sheet is filed only against the widow of the deceased
and her brothers. According to the learned Additional Public
Prosecutor the custodial presence of the present applicant is
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required to trace out the names of those unknown persons.
17. I am afraid, the said can be a reason for giving
custodial presence of the applicant for a simple reason that
applicant's two brothers Vilas and Gopal not only face police
custody remand but also they are still in magisterial custody
remand and learned Additional Public Prosecutor could not
point any investigation for tracing out unknown persons. In
this view of the matter, in my opinion, the said cannot be the
reason to deny pre-arrest bail.
18. In view of the order dated 29.08.2019 passed by
this Court, the applicant has attended the investigating
officer from 01.09.2019 to 07.09.2019 and was with the
investigating officer from 11:00 a.m. till 05:00 p.m. This
aspect is not denied by the learned Additional Public
Prosecutor, from instructions received from the investigating
officer. In this case there is no recovery to be made from the
present applicant.
19. Prima facie there is a possibility that the
deceased might have died natural death though it will always
open for the prosecution to prove otherwise during the trial.
On the backdrop of above discussion, I pass the
following order.
ORDER
(i) The application is allowed.
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(ii) In the event of arrest in connection with Crime
No.7/2019 registered with Police Station, Risod, Dist. Washim for an offence punishable under Sections 143, 147, 148, 302, 506 of the Indian Penal Code, applicant- Sandip Rajaram Dhadve be released on bail on he executing P.R. Bond in the sum of Rs.10,000/- with one solvent surety in the like amount.
(iii) Applicant is directed to attend Police Station, Risod Dist. Washim once in a week i.e. on Sunday and shall remain with the investigating officer between 11:00 a.m. to 02:00 p.m till culmination of trial.
(iv) All the observations made in this order are made only for deciding the present application qua the present applicant. The learned Judge of the trial Court before whom the trial will be conducted shall not get influenced by observations made in this order and shall independently decide the case, in accordance with law.
The application is disposed of.
JUDGE srwagh ::: Uploaded on - 01/10/2019 ::: Downloaded on - 02/10/2019 00:59:02 :::