CNR MHNS010048242022 Order below Exh.1 in Cri. Bail Application No.1124/2022.

[ Sunita Anil Zendphale Vs. State ]

This is first bail application moved by the applicantaccused Sunita Anil Zendphale for releasing her on bail under section 439 of Cr.P.C., after the charge­sheet in connection with C R No.196/2022 registered with Dindori Police Station, Tal. Dindori for the offence U/sec. 302, 201, 120­B, r/w sec. 34 of Indian Penal Code, registered on 3.6.2022. Applicant­accused was arrested on 5.6.2022 and produced before the Court and remanded to Police custody till 9.6.2022 and thereafter remanded to Magisterial custody and since then she is in jail.

2.It is stated in the application that, the applicant­ accused being wife of the deceased Anil Rajaram Zendphale has nothing to do with present crime. At the time of incident she was residing at her matrimonial house alongwith her children. She has been falsely implicated in present case. The deceased was mentally ill and was hard drunked and inspite of all these things she had continued with him and performed her matrimonial duties. However, on the contrary, the deceased was abusing and assaulting her, therefore, she has no option but to left his company and therefore, she went to residing with matrimonial house. The investigation is over and now the charge­sheet is filed in the Court. The applicant­accused is in jail more than 4 months. She is having two children. There is dispute with the mother­in­law and brother­in­law of the applicant­accused on the count of deposit of amount. Deceased was abusing the applicant­accused by coming to his parental house and therefore, the brother of the applicant­accused has lodged complaint at Vadner Bhairav Police station. Applicant­accused is having decease of stomach and taking treatment regularly. She is labour and was not having any connection with the alleged crime and as she was not having good relation with first informant, she has been falsely implicated in present crime. The antecedent of the applicantaccused are clean. There is no evidence in charge­sheet about illicit relation with accused No.1. Hence, prayed for grant bail on the grounds set­out in the application.

3.Application is strongly opposed by the State by filing say/report Exh.7 and submitted that, offence is serious, applicantaccused is responsible for the death of the deceased. She had conspired with accused No.1 Dipak Dattu Gave to commit the murder of her husband Anil and the phone call recorded of these two accused, prima facie discloses that she was in contact with accused No.1 till the murder of her husband Anil and therefore, submitted that there is sufficient material against the applicant accused. Therefore, prayed to reject the application.

4.The learned counsel Shri. A.D. Avhad submitted that applicant­accused has been implicated falsely. Inspite of the fact that her husband was not co­operating with her in the matrimonial duties and on the contrary was abusing and beating her under influence of liquor and he was mentally ill and therefore, the applicant­accused went to her maternal house and started her life again with the help of her parents. He submitted that there is no evidence in the charge­sheet in connection with the illicit relation with accused No.1 and with conspiracy committed murder of the deceased Anil. He pointed out that the FIR is against the unknown person filed by her brother­in­law. She was not suspected in the crime by the first informant. There is no direct or circumstantial evidence against the present applicant­accused. The earlier bail application No. 735/2022 was rejected as the investigation was in progress. Now the charge­sheet filed in the Court and therefore, prayed to allow the bail application. He relied upon following caselaws i) Rup Chand Vs Mahabir Parshad and anr., AIR 1956 PH 173, ii) Suresh Kalmadi Vs CBI, in Cri.M.C.2143/2015 decided on 22.5.2015, iii) State Vs Arif Khan and ors., in S.C. No.6/2014 decided on 15.10.2014.

5.The learned APP Shri. Sachin Gorwadkar submitted that the applicant­accused had love affair and had extra marital relationship with the accused No.1 and they both hatched conspiracy to commit the murder of Anil, so as to remove him from their life and relationship and consequently, Anil was allured by the accused No.1 by taking him for drinking liquor and took to the spot of incident and assaulted him by a Hammer on his head and thereby committed murder and caused disappearance of the evidence and throughout this period the accused No.2 i.e. the wife of the deceased was anxiously in contact with accused No.1.

Therefore, he submitted that there is sufficient material against the applicant­accused and therefore, the present bail application may not be entertained.

6.Admittedly, the FIR is registered against the unknown person. It is not disputed that deceased Anil was mentally ill and was in habit of drinking liquor. His behaviour was not proper and therefore, his wife i.e. the applicant­accused left his company and went to reside with her children at her maternal house at Khadak Ozar, Tal. Niphad, Dist. Nashik.

7.On perusal of the entire charge­sheet, it is disclosed that, the mobile handset of the deceased was seized by the police at the instance of accused No.1. So also the police have made entire recovery of the weapons used in the crime at the instance of accused No.1. The police have also seized CDR of both the accused.

On careful perusal of the said CDR and the mobile numbers of both the accused, which disclosed that the Mobile No.8262882001 was in the name of accused No.1 Dipak Dattu Gave and Mobile No.9356158695 was in the name of accused No.2 Sunita Zendphale and in CDR there is long, detail communication between both the accused particularly on the day of incident, which shows that they were continuously touch with each other on telephone. The statement of other witnesses goes to show that during his life time deceased had quarreled with his wife i.e. applicant­accused on the count of alleged illicit and extra marital relation with accused No.1 and frequently they used to quarrel on this count. Though deceased was addicted to liquor and had suffered mental disorder even though his relatives have help him for medical treatment and therefore, they were looking after him.

8.Unfortunately, the present applicant­accused left the company of deceased and went to reside with the parental house at Khadak­ozar. Prior to that both accused and deceased were working in same work place and they came into contact with each other and developed illicit relationship and they both came into contact. The evidence on record goes to show that the accused No.1 Dipak Dattu Gave, who was the actual assailant was in touch with the present applicant­accused. There is sufficient record to hold that they have hatched a conspiracy to murder the deceased Anil, so that there should not any hurdle in their relationship. Therefore, there is sufficient evidence against the applicant­accused, though the case is based upon circumstantial evidence, however, the evidence collected by the Investigating Officer is strong enough to connect the present applicant­accused to the present crime. In a similar situation, in Mansoor Ahmed Vs State of Uttarakhand, reported in 2011 (22) R.C.R. (Criminal) 411, wherein the second wife of the deceased had conspired with her paramour to kill her husband and the paramour with the help of other accused gave effect to the said conspiracy and killed the husband, therefore, considering the evidence came on record, the Hon’ble Uttarakhand High Court held that,

“Ajay Sukhija got a match, and co­accused Nihas who had deserted her first husband, and had a son got married to Ajay Sukhija. But after this marriage, co­accused Nisha used to live most of the time in Muzzaffarnagar with her son.

Learned counsel for the State further submitted that during investigation it was further revealed that to get the property of the deceased she conspired with the present applicant Mansoor Ahmed and two others Sarfaraz and Munnawar to kill Ajay Sukhija. The four stayed in “KK” hotel in Rudrapur on 12.01.2010, and in wee hours the wife (co­accused Nihsha) called her husband (deceased) out from the house by giving him a ring. As soon as he came out, he was dragged inside the vehicle (INNOVA), strangulated with a clutch wire, and his dead body was thrown by the side of the road. Learned counsel for the State submitted that chain of circumstances is complete as against the applicant and other
three accused, collected during investigation. However, learned counsel for the applicant pleaded that the applicant is innocent, and the chain of circumstances shown against him is incomplete. Call details of phones of the parties have been collected. Copy of register of Hotel was also examined.

Statement of co­accused also got recorded under Section 164 Cr.P.C. Bail of co­accused Nisha has already been rejected by this Court”.

Thus, in this case the bail application moved by Mansoor Ahmed was rejected and it is also mentioned that the bail application of the co­accused Nisha, who is second wife of deceased. Therefore, so far as case­law relied upon by the applicant­accused, they are on CDR and its evidentiary value in the trial, but this is a bail application which is required to be decided on the basis of the police papers placed on record and the defence placed at this stage cannot be considered and hence, case­laws are not helpful to the applicant­accused in this case.

9.Resultantly, as the applicant­accused is fully involved in present crime and was hand in hand with the accused No.1 and it is her who has planned to commit murder of her husband and therefore, the bail application is devoid of merit. Hence, following order.

O R D E R
1) Bail application No.1124/2022 is hereby rejected.

2) Inform concerned police station.

Digitally signed by SHINDE SHINDE MADHAV A MADHAV A Date: 2022.10.15 ( M. A. Shinde ) 17:43:52 +0530 Date­ 15.10.2022 Additional Sessions Judge­ 9, Nashik.