MADHUKAR DEORAO KULKARNI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE applicant seeks cancellation of anticipatory bail and bail granted to respondent Nos. 2 to 4 by the Additional Sessions judge, Buldhana. The respondent Nos. 2 to 4, apprehending arrest sought anticipatory bail for offence under section 498-A r/w. section 34 of I. P. C. and interim bail was granted to them by the Additional Sessions Judge, Buldhana vide order dated 1-12-2000. On 2-12-2000, the respondent Nos. 2 to 4 filed an application that as the wife of respondent No. 2 had expired, there was every likelihood of adding sections 302 and 306 of the I. P. C. by the police and as such, the interim bail be granted in respect of the said offences. The Additional Sessions Judge by order dated 2-12-2000, directed that even if new sections are added, in connection with the death of the wife of respondent No. 2, the application shall be released on bail in the event of arrest as per the order dated 1-12-2000. Subsequently, by order 8-12-2000, the anticipatory bail was confirmed and this is one of the order, in relation to which application for cancellation of bail has been filed. Thereafter, on 5-2-2001, regular bail was granted and this order also is subject matter of application for cancellation of bail.

(2.) THE learned Advocate Shri Brahme argued before me that both the orders dated 8-12-2000 as also order dated 5-2-2001, show that there is no application of mind while granting bail. The said finding do not disclose reasons for exercise of discretion in favour of the respondent Nos. 2 to 4 and that the Additional Sessions Judge, Buldhana has rather shown a very casual approach in respect of the offence of serious nature. It may also be mentioned here that the applicant had filed an application for cancellation of bail before the Additional Sessions Judge, Buldana which was rejected vide order dated 28-2-2001 and according to the learned Advocate for the applicant, even in this order no reasons are given as to why the learned Additional Sessions Judge had come to the conclusion that there was no case for cancellation of bail. According to the learned Advocate for the applicant, the death had taken place within 7 years of marriage and there is a presumption under section 113 of the Indian Evidence Act; that in the second dying declaration the deceased has stated as to how kerosene was poured over her and she was burnt. In this dying declaration she has explained the circumstances under which the first dying declaration was given by the deceased. It is further pointed out that in addition to the second dying declaration, there are statements of the applicant and the members of his family to the effect that there was dowry demand on account of which the deceased was being constantly harassed and ill-treated and ultimately burnt to death. Therefore, the learned Advocate for the applicant contends that the anticipatory bail as well as bail granted to the respondent Nos. 2 to 4 be cancelled. The learned Advocate for the applicant has placed reliance on a number of judgments, namely, (Sumunder Singh v. State of Rajasthan and others), A. I. R. 1987 S. C. 737 (Bhulabai wd/o Barkaji Matre v. Shankar Barkaji Matre), 2000 (Supp.) Bom. C. R. (N. B.)237 : 1999 (2) Mh. L. J. 227; (Say Gaud Kondagaud Bhurewar v. State of Maharashtra), 2001 (Supp. 2) Bom. C. R. (A. B.)301 : 2000 (4) Mh. L. J. 840 and (Puran v. Rambilas and another), 20001 (5) Bom. C. R. (S. C.)830 : 2001 (3) SCALE 695.

(3.) THE learned Advocate for the respondent Nos. 2 to 4, urged before me that even in the F. I. R. , which was lodged on 2-12-2000, the applicant has not stated that the deceased was burnt by her in-laws and on the contrary it was stated that the deceased got himself burnt by stove. It is next urged by the learned Advocate for the respondent Nos. 2 to 4 that though in notice dated 5-12-1997, given by the deceased to the respondent No. 2, the allegations of demand were in relation to Rs. 5,000/- or T. V. and Godrej Almirah, on account which there was allegation of beating and ill-treatment, yet, in the F. I. R. and the statements of witnesses, the demand is stated to be of Rs. 30,000/- for purchasing trax. The learned Advocate for the respondent Nos. 2 to 4 further submitted that prior to 2-12-2000, there was nothing to show ill-treatment or demand; there are no independent witnesses in the matter; that the deceased in her first dying declaration recorded by the Executive Magistrate had stated that her saree caught fire on account of inflated flame of the stove and that her husband had made efforts to put out the flames. After placing reliance on (Bhagirath Singh Jadeja v. State of Gujarat), A. I. R. 1984 S. C. 372, (Joaquim Mann v. State), 1973 Cri. L. J. 1876, (Dattu Thakye Patil v. State of Maharashtra), 1980 Mh. L. J. 522 and (Dhanu Laxmi Reddy v. State of A. P.), 1999 (4) Crimes 90, It is urged that no case for cancellation of bail has been made out.