High Court
Legal Reasoning
IN THE JUDICATURE OF HIGH COURT AT BOMBAYBENCH AT AURANGABAD994 BAIL APPLICATION NO. 1823 OF 2024Rukminbai Balasaheb BabarVERSUSThe State Of Maharashtra And Another...Advocate for Applicant : Mr. Salunke Sudarshan J.APP for Respondents-State: Mr. A.A.A.Khan...CORAM : ARUN R. PEDNEKER, J.Dated : December 12, 2024.PER COURT :-1.Heard learned counsel for the applicant and the learned APP for therespondent-State. 2.The applicant is seeking bail as she was arrested on 08.05.2024 inconnection with FIR No.145/2024, dated 03/05/2024, registered withPalam Police Station, District Parbhani, for the offences punishable undersections 302, 201 ,202, 34 of the Indian Penal Code. 3.It is the case of the prosecution, as reflected from the charge-sheetis that the daughter of the applicant was romantically involved with oneMr. Vikas Kedale, who belonged to a different caste from the applicant.The parents had fixed the marriage of their deceased daughter with someother person and had thus opposed their daughter's relationship with Mr.Vikas Kedale. However, the deceased was firm in her decision to marryMr. Kedale. At the relevant time, the deceased was 19 years old.Page 1 of 13
Legal Reasoning
994 BA 1823-20244.The prosecution alleges that on 15/04/2024, the deceased lefther house as her parents arranged her marriage with one Mr. VaibhavKhavale. Engagement ceremony had been performed with Mr. Khavale,and the marriage was scheduled for 02/05/2024. On account of thescheduled marriage, the deceased left home and went to Latur, whereshe stayed in a rented room. In order to resolve the issue, the parentsof the deceased had fixed a meeting at 7.30 pm on 21.04.2024 with thedeceased, his boyfriend and his relatives near the market yard at Parali.5.It is further alleged that at that time in the meeting, BalajiRupner, Satish Kedale, Balaji Gayal, Manik Lingayat, Balaji Kedale, thedeceased and father of deceased were present. During the meeting, thefather tried to persuade his daughter (deceased) to return home,stating that her marriage was fixed with another person. However, thedeceased insisted on marrying Mr. Vikas Kedale. After some discussion,the father assured her that he would allow her to continue hereducation and cancel the arranged marriage. He convinced her toreturn home, and the deceased returned home with her father andother relatives, at their village, Navha. This meeting took placeapproximately 22 to 25 kilometers from her village.Page 2 of 13 994 BA 1823-20246.According to the prosecution, the deceased stayed with her fatherat their home at night on 20/04/2024. It is alleged that between thenight of 20/04/2024 and 21/04/2024, the applicant (mother) and herhusband (father of the deceased) killed their daughter (Sakshi) at homeand thereafter, with the help of other relatives in the village, burned herbody in the village crematorium by 3 a.m. on 21/04/2024. Thisinformation was allegedly known to people closely associated with theapplicant's family. However, no case was initially registered by anyone.7.A few days later, the police received secret information that thegirl (Sakshi) had been killed. Following this, an investigation wasinitiated, and an FIR was registered on 03/05/2024. The informant wasa police officer who received a tip that a 19 year old girl from theMaratha community, who wanted to marry Mr. Vikas Kedale, had beenkilled by her parents in the night between 20/04/2024 and 21/04/2024and immediately afterward burned the body. Based on this information,both the applicant and her husband were arrested.8.During the investigation, the applicant's husband allegedlyrevealed the location where the deceased was burned. From thatPage 3 of 13 994 BA 1823-2024location, remnants of the deceased's body, including a tooth, wererecovered. DNA report confirmed the identity of the deceased. Charge-sheet was subsequently filed in the matter, and the applicant remains incustody.9.The applicant (mother) has filed the present bail application,contending that there is no evidence to establish her involvement in thecrime. She argues that the evidence on record only suggests that thedeceased was taken by her father from the meeting atGangakhed(Parali) around 9:00 p.m. on 20/04/2024, possibly towardtheir village. There is no direct evidence to show that the deceased wasbrought back to their home or that the applicant was involved in thealleged crime.10.The applicant further submits that the only evidence available onrecord relates to a witness (a rickshaw driver) who allegedly saw thedeceased's uncle on 23/04/2024 disposing of ashes from thecrematorium into the Godavari River. She asserts that this evidencedoes not establish her involvement in the crime. The recovery ofevidence pertains to her husband, and there is no proof linking her tothe deceased's death. Based on these contentions, the applicant seeksPage 4 of 13 994 BA 1823-2024bail in the matter.11.The prosecution evidence available on record in terms of policestatements and recovery statement under Section 27 of the IndianEvidence Act is briefly summarized as under: Witness Mr. Vikas Vaijnath Kedale has stated that on 02.05.2024the marriage of the deceased was fixed with one Mr. Vaibhav Khavale.At the relevant time, on account of the fact that her marriage was to beperformed against her wishes, the deceased had informed that shewould go to Latur and accordingly on 15.04.2024 she went to Latur andstayed at Ritesh Lodge. Thereafter she stayed in a rented room atGangakhed Colony. Since she was staying alone, she could not get aroom. As such witness helped her to get accommodation by giving hismobile number. He has further stated that parents of the deceasedhave fixed a meeting to resolve the matter. Accordingly on 21.04.2024at 7.30 p.m. near the market road at Parali, a meeting of the parents ofthe deceased and other family member of the deceased was fixed withher alleged boyfriend and others. After the meeting the father of thedeceased had taken the girl with him. On 22.04.2024 at the morning 7hours Mr. Manik Lingayat informed to the cousin of this witness Mr.Balaji that at 3 p.m. Achyut Babra had informed him on phone thatPage 5 of 13 994 BA 1823-2024deceased has been killed by her parents. 12.Similar evidence is given by Kavita Vaijnath Kedale, mother ofVikas Kedale. In addition she informed that on 22.04.2024 she came toknow on the basis of general gossip among the people in the villagethat the deceased was killed by the parents and had cremated her inthe village crematorium. 13.Mr. Vaijnath Bapurao Kedale, father of Vikas Kedale has alsostated in his evidence that he was present in the meeting which washeld on 21.04.2024 with parents of the deceased. He has also statedthat after the meeting, the deceased went with her father along withother relatives in a private vehicle to go to her at village Navashev asthe father had assured that he would cancel her marriage fixed withanother person. 14.The next statement is of Mr. Manik Baburao Lingayat. In hisevidence, Manik has stated that he was also present in the meetingheld on 21/04/2024. Similar statements are given by Mr. Balaji aliasBalu Shrirang Gayal and Mr. Balaji Suresh Rupner.Page 6 of 13 994 BA 1823-202415.The next evidence is of Shaikh Shadul Shaikh Kasim, autorickshaw driver. He has stated that on 23.04.2024 at 7.30 p.m. AchyutDattarao Babar has informed him on phone to come on the bridge ofthe river. As Achut is regular customer, Shaikh Shadul, went nearbridge. There Achyut Babar, Balasaheb Bhimraon Babar, RajebhauRakhmaji Babar, Gopal Ashok Shinde came near his auto and put twoblack bags containing ash in his rickshaw and asked Shaikh Shadul totake the rickshaw towards the river. On being questioned, Achyutinformed that this was ash of daughter of the Balasaheb Babar.Thereafter, ashes were thrown from bridge into the river.16.The next relevant evidence is the recovery panchanama made atthe instance of the husband of the applicant (father of the deceased) inpresence of panchas. In presence of panchas, father of the deceasedhas shown readiness to show the place where the girl was cremated.Thereafter, police, panchas went to the spot shown by the father of thedeceased where cremation of the deceased took place and at that placesome bones, tooth and other articles of the deceased were found.These articles were seized under the panchanama and sent to C.A. foranalysis. It is submitted that the DNA samples of these articlesmatched with the deceased. In the said recovery statement, it isPage 7 of 13 994 BA 1823-2024alleged that the father of the deceased had confessed the crime. Soalso, the role of the applicant (mother of the deceased) has beenrevealed in the crime. It is the case of the prosecution that on the saidrecovery statement under Section 27 of Indian Evidence Act, the fatherof the deceased, revealed that father of the deceased had killed thedeceased by pressing her neck and the applicant (mother of thedeceased) caught hold her legs.17.From the perusal of the evidence it is seen that the deceased ranaway from the house and stayed in a rented room, as her marriage wasarranged with one of the relatives with whom she did not want to getmarried. A meeting was fixed between the boyfriend, friends of thedeceased and father of the deceased and other family members. It wasresolved that the deceased will return with her father and her arrangedmarriage will be cancelled. On 21.04.2024 at 9 p.m. the deceasedproceeded with her father in a private vehicle towards her village at herresidence. The evidence on record shows that the deceased had beentaken towards the residence of the applicant. The spot panchanamaconducted at the residence i.e. at the place of alleged offence shows noincriminating material. Thereafter, it is alleged that by 3 a.m. on22/04/2024 the deceased was cremated in the crematorium of thePage 8 of 13 994 BA 1823-2024village by the father of deceased along with the help of other relatives.18.The next evidence relates to the dumping of the ashes by theuncle of the deceased along with the others. The said evidence does notconnect the applicant with the crime. The very fact that the deceasedwas brought at her residence before being killed is nowheredemonstrated by any evidence. There is no independent witnessshowing that the deceased was brought at her residence. There is noevidence as regard the involvement of the applicant with the crime.19.The evidence which the prosecution relies upon to connect theapplicant with the crime is the statement under section 27 of Indianevidence Act given by the father of the deceased by which recovery ofthe cremated body parts i.e. tooth etc. of the deceased is made andidentity of the deceased was established by virtue of the DNA test. Tothat extent, there is evidence available against the father of thedeceased. However, in the same recovery statement the father of thedeceased has made a confessional statement to the police that he hascommitted an offence along with the applicant and has killed thedeceased. However, such a confessional statement relied by theprosecution is not admissible in evidence in view of Section 25 of thePage 9 of 13 994 BA 1823-2024Indian Evidence Act. The confession made to the police officer duringthe course of the custody of father of the deceased is not admissible inevidence. The only part of evidence that may be available would be thatpart of the statement made which leads to the discovery of theincriminating material.20.The Honourable Supreme Court in the case of Perumal Raja vs.State reported in, AIR 2024 SC 460 as regards the confessionalstatement of the accused in police custody has held at para no. 19 & 22as under : 19. The prosecution's case, in the absence of eyewitnesses, is based upon circumstantial evidence. As perSection 25 of the Indian Evidence Act, 18728, a confessionmade to a police officer is prohibited and cannot beadmitted in evidence. Section 26 of the Evidence Actprovides that no confession made by any person whilst heis in the custody of a police officer shall be proved againstsuch person, unless it is made in the immediate presenceof a Magistrate. Section 279 of the Evidence Act is anexception to Sections 25 and 26 of the Evidence Act. Itmakes that part of the statement which distinctly leads todiscovery of a fact in consequence of the informationreceived from a person Accused of an offence, to theextent it distinctly relates to the fact thereby discovered,admissible in evidence against the Accused. The fact whichis discovered as a consequence of the information given isadmissible in evidence. Further, the fact discovered mustlead to recovery of a physical object and only thatinformation which distinctly relates to that discovery can beproved. Section 27 of the Evidence Act is based on thedoctrine of confirmation by subsequent events - a fact isPage 10 of 13 994 BA 1823-2024actually discovered in consequence of the informationgiven, which results in recovery of a physical object. 22. However, we must clarify that Section 27 of theEvidence Act, as held in these judgments, does not laydown the principle that discovery of a fact is to be equatedto the object produced or found. The discovery of the factresulting in recovery of a physical object exhibitsknowledge or mental awareness of the person Accused ofthe offence as to the existence of the physical object at theparticular place. Accordingly, discovery of a fact includesthe object found, the place from which it was produced andthe knowledge of the Accused as to its existence. To thisextent, therefore, factum of discovery combines both thephysical object as well as the mental consciousness of theinformant Accused in relation thereto. In MohmedInayatullah v. State of Maharashtra, elucidating on Section27 of the Evidence Act, it has been held that the firstcondition imposed and necessary for bringing the Sectioninto operation is the discovery of a fact which should be arelevant fact in consequence of information received from aperson Accused of an offence. The second is that thediscovery of such a fact must be deposed to. A fact alreadyknown to the police will fall foul and not meet thiscondition. The third is that at the time of receipt of theinformation, the Accused must be in police custody. Lastly,it is only so much of information which relates distinctly tothe fact thereby discovered resulting in recovery of aphysical object which is admissible. Rest of the information is to be excluded. The word 'distinctly' is used to limit anddefine the scope of the information and means 'directly','indubitably', 'strictly' or 'unmistakably'. Only that part ofthe information which is clear, immediate and a proximatecause of discovery is admissible.Considering the above position of law as declared by theSupreme Court that only the part of the confessional statement madeunder section 27 of the Indian Evidence Act which leads to discovery ofPage 11 of 13 994 BA 1823-2024incriminating material is admissible in evidence. The confessionalstatement made by the accused (father of the deceased) that he alongwith his wife/applicant killed the deceased Sakshi is not admissible inevidence.21.The applicant was arrested on 8.5.2024. Since then she is incustody. After completion of investigation charge-sheet is filed. Inabsence of evidence connecting the applicant with the murder ofdeceased to indicate that at the relevant time the deceased wasbrought to her house and that the offence took place in the house ofthe applicant or that the deceased was last seen with the applicant orwas involved in cremating the deceased, I hold that prima facie forwant of evidence connecting the applicant (mother of the deceased) tothe crime, she cannot be said to be involved in the crime and thusdeserves bail. 22.In view of the above, the application is allowed in the followingterms : -a]The applicant shall be released on bail in connection withFIR No.145/2024, dated 03/05/2024, registered with PalamPolice Station, District Parbhani, for the offences punishableunder sections 302, 201 ,202, 34 of the Indian Penal Code, onPage 12 of 13 994 BA 1823-2024furnishing PR bond of Rs.15,000/- with one or two sureties in thelike amount to the satisfaction of the trial Court. b]The applicant shall co-operate with the trial Court and sheshall attend each and every date, unless exempted by the trialCourt.c]The applicant shall not tamper with the evidence of theprosecution and she shall not influence the witnesses and otherpersons concerned with the case. d]The applicant, upon being released on bail, shall place onrecord of the trial Court the details of her Contact Number andresidential address with updates in case of any change. 23.Needless to say, in case of violation of any of the aforesaidconditions, the bail granted to the applicant shall be liable to becancelled. It is also clarified that the observations made in this orderare prima facie and are limited to the disposal of the present bailapplication. The concerned Court shall proceed further in the matterwithout being influenced by the observations made hereinabove. 24.The application stands disposed of.( ARUN R. PEDNEKER, J. )vj gawade/-.Page 13 of 13