Bombay High Court
Manohar Bankat Kadam And Others vs The State Of Maharashtra on 29 June, 2020
Author: V. K. Jadhav
Bench: V.K.Jadhav
1 43-BA-338-2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
43 BAIL APPLICATION NO.338 OF 2020
1. MANOHAR BANKAT KADAM
2. DATTATRAYA @ BABLU MANOHAR KADAM
3. SHIVSHALA MANOHAR KADAM
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicants : Mr. Salunke Sudarshan J
APP for Respondents-State: Mr. P.N. Kutti
...
CORAM : V.K.JADHAV, J.
DATE : 29.06.2020
PER COURT :-
1. The applicants are seeking Regular Bail in
connection with Crime No.147 of 2019 registered with
Shirdhon Police Station, District Osmanabad for the
offences punishable under Sections 302, 307, 498(A) &
34 of IPC. Their application with similar prayer bearing
Criminal Bail Applications No.45, 46 & 47 of 2020 came
to be rejected by the learned Additional Sessions Judge,
Osmanabad vide order dated 28.02.2020.
2. The learned counsel for the applicants
submits that the complaint came to be lodged by father
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of deceased Priyanka on 28.10.2019 on the basis of oral
dying declaration made by deceased Priyanka before the
parents and her sisters. Learned counsel submits that in
the complaint, a specific role has been ascribed to co-
accused Mahesh, the husband of deceased Priyanka and
the allegations as against the applicants are restricted to
the extent of ill-treatment being extended to deceased
Priyanka on account of non fulfillment of demand of cash
amount. Learned counsel submits that even though,
deceased Priyanka was alive till 01.11.2019, her dying
declaration was not recorded through Executive
Magistrate. Learned counsel submits that on
28.10.2019, after Priyanka met to her parents and made
her oral dying declaration before them, the police
recorded dying declaration of deceased Priyanka wherein
the allegations have been made against applicant nos. 1
& 3. Learned counsel submits that there is no possibility
of tampering the prosecution evidence since the
informant and his other family members are residing in
Taluka Kaij whereas the applicants are residing in
another District. Learned counsel submits that applicant
nos. 1 & 2 came to be arrested on 29.10.2019 and
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applicant no.3 on 28.12.2019 in connection with the
present crime. Learned counsel submits that the dying
declaration allegedly recorded by the police is not free
from doubts. There is no endorsement on the bottom of
the dying declaration that the contents of dying
declaration were read over to deceased Priyanka and
she had admitted the same. Learned counsel submits
that the applicants may be released on bail.
3. The learned APP has strongly resisted the
application on the ground that deceased Priyanka has
named the applicants in her dying declaration recorded
by the police with specific role ascribed to each of them.
Learned APP submits that, at this stage, the formality
like endorsement on the bottom of dying declaration is
not required to be considered and the same may be
considered by the trial Court during the full fledged trial
of the case. Learned APP submits that all the applicants
were present in the house and as such, their
participation in the crime as narrated by the deceased in
her dying declaration cannot be ruled out. Learned APP
submits that there are allegations about ill-treatment
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being extended to deceased Priyanka on account of non
fulfillment of an unlawful demand of cash amount of
rupees one lac for construction of the house. There are
serious allegations. Deceased Priyanka was first
administered diesel and thereafter she was set on fire.
She had sustained 95% burn injuries. The applicants
may not be released on bail.
4. On going through the allegations made in the
complaint and on perusal of the charge sheet, I find that
prima facie, there is an inconsistency between oral dying
declaration and dying declaration recorded by the police.
It is pertinent to note that even though deceased
Priyanka was taken to the hospital on 27.10.2019 at
about 04.00 am and though she remained alive till
01.11.2019, her dying declaration was not recorded
through Executive Magistrate. On careful perusal of the
contents of FIR, so also statement of family members of
the informant before whom deceased Priyanka allegedly
made her oral dying declaration, main allegations have
been made against co-accused husband Mahesh and it
has been simply stated by deceased Priyanka that the
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present applicants were present in the house. It also
appears that the allegations have been made to the
effect that co-accused husband Mahesh has
administered diesel to deceased Priyanka, poured diesel
on her person and set her on fire. As per the allegations
made in the complaint, deceased Priyanka has made
oral dying declaration to the effect that all the accused
persons including the applicants were ill-treating her on
account of non fulfillment of demand of rupees one lac
for construction of the house. Prima facie, it appears
that the allegations as against the applicants are
restricted to the extent of ill-treatment being extended
to the deceased Priyanka. It is also not clear from the
contents of FIR, which came to be filed on the basis of
oral dying declaration made by deceased Priyanka as to
whether these applicants were present at the time of
actual commission of crime. It has been simply stated in
the complaint that all the applicants were present in the
house. Though certain allegations have been made in
her dying declaration recorded by the police, however,
there are certain deficiencies as pointed out by the
learned counsel for the applicants. Furthermore, the
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dying declaration was not recorded by the Executive
Magistrate though deceased Priyanka remained alive for
near about 3 days after the alleged incident. Thus,
considering the entire aspects of the case and since the
allegations have been made mainly against co-accused
husband Mahesh, I am inclined to release the present
applicants on bail. There is no question of tampering of
the prosecution evidence as the informant and his family
members are residing in another District. Hence, the
following order:
ORDER
1. The application is hereby allowed.
2. The applicants viz. MANOHAR BANKAT KADAM, DATTATRAYA @ BABLU MANOHAR KADAM and SHIVSHALA MANOHAR KADAM in connection with Crime No.147 of 2019 registered with Shirdhon Police Station, District Osmanabad for the offences punishable under Sections 302, 307, 498(A) & 34 of IPC, be released on bail on furnishing P.B. of Rs.20,000/-(Rupees Fifteen Thousand only) each with one solvent surety, of the like amount, on the following conditions :-
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3. Application is, accordingly, disposed off.
(V. K. JADHAV, J.) Sam...
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