1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.3056 OF 2009 IN CRIMINAL APPEAL NO. 411 OF 2009 Sau. Meerabai w/o Dilip Wagh (Patil) APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri V.N. Damle, Advocate for the applicant Shri K.B. Choudhari, A.P.P. for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 22nd September, 2009. ORAL ORDER (PER DAVARE, J.) 1. Perused. 2. By the present application, the applicant/ accused has requested for suspension of the substantive sentence and for her enlargement on bail during the pendency of the appeal which has been filed against the judgment and order passed by learned 2 Additional Sessions Judge, Dhule in Sessions Case No.92/2008 on 26.8.2009, convicting the applicant for the offence punishable under Section 302 of the Indian Penal Code and sentencing her for the imprisonment for life and fine. 3. It is alleged that, son of applicant i.e. the accused No.1 Rahul married with the victim Kalpana on 9.5.2007. There are allegations against the applicant and co-accused Rahul in respect of ill-treatment and cruelty. It is alleged that the incident occurred on 27.6.2008 and the applicant herein poured kerosene on the person of the victim Kalpana and set her ablaze on the said date and victim succumbed to the injuries and died in the hospital on 29.6.2008 at 6.30 a.m. Thereafter the applicant herein was arrested and the applicant and her son viz. Rahul i.e. accused No.1 were charged under Section 498-A and Section 302 read with Section 34 of the Indian Penal Code and they were tried in the aforesaid Sessions Case and applicant came to be convicted for the offence punishable under Section 302 of the Indian Penal Code, but she was acquitted under Section 498-A of the Indian Penal Code as well as co-accused Rahul was acquitted from both the said charges. Being aggrieved and dissatisfied by the said judgment and order, the applicant/ accused has preferred the accompanying appeal challenging the conviction and sentence and prayed for enlargement on bail. 3 4. The main attack of the learned counsel for the applicant was on two dying declarations, dated 27.6.2008 i.e. Exh. 20 and Exh. 45. The learned counsel submitted that, both the said dying declarations are not voluntary and truthful. The learned counsel for the applicant also submitted that the contents of the dying declaration (Exh. 20) were not read over and explained to the deceased as well as the contents thereof have not been proved before the Court. The learned counsel for the applicant further submitted that none of the witnesses on the spot were examined by the prosecution which hampers the prosecution case. It was also submitted that the prosecution has failed to produce the medical case papers of the deceased Kalpana on record which also creates doubts about the prosecution case. It is further submitted that although it is alleged that the victim was sleeping on the cot in evening at about 6.30 p.m. on 27.6.2008, there is no corroboration thereto and even the mattress on the said cot was not seized which diminished the credibility of prosecution case. Considering the aforesaid aspects, the learned counsel submitted that there are discrepancies, infirmities and lacunae in the prosecution case and hence, canvassed that the applicant/accused is entitled to be released on bail. 4 5. Learned counsel for the applicant further urged that the applicant is an old woman and pointed out that she was on bail during the pendency of the trial and hence, submitted that her application be considered in proper perspective and she be released on bail. 6. Shri Choudhari, learned A.P.P. vehemently opposed the present application and submitted that both the dying declarations of the deceased are consistent, truthful and voluntary and they have been rightly relied upon by the learned trial Judge while convicting and sentencing the applicant herein. It is submitted that the first dying declaration i.e. Exh. 20 was recorded by the Executive Magistrate and the second dying declaration (Exh. 45) was recorded by the investigating officer and the same was treated as F.I.R. and versions of the victim in both the said dying declarations are consistent and reliable and connect the applicant herein with the guilt. 7. As regards the objection raised by the learned counsel for the applicant that the contents of the dying declaration (Exh. 20) were not read over and explained to the victim, the learned A.P.P. pointed out that there is endorsement on dying declaration (Exh. 20) that the contents of the dying declaration were read over 5 and explained to the deceased. Moreover, learned A.P.P. further pointed out that no question in that respect was put up to P.W.1 in cross examination and hence, the contentions raised by the learned counsel for the applicant in that respect cannot be accepted. Accordingly, in view of the matter, the learned A.P.P. submitted that the applicant has failed to make out a case for the bail and hence, submitted that the present application be rejected. 8. We have perused the record and proceedings which was made available for inspection and perusal. We have also perused the oral and documentary evidence as well as perused the medical evidence and heard the submissions advanced by both the learned counsel for the parties. 9. Considering the rival submissions, admittedly the prosecution has examined inasmuch as 8 witnesses to substantiate the charges leveled against the applicant and co-accused Rahul. On the other other hand, the accused have examined D.W. 1 i.e. father of the victim Kalpana as defence witness. Considering the medical evidence, it is apparent that the deceased sustained 60% burns and post mortem notes (Exh. 12) disclose the cause of death as shock following thermal burns. The testimony of P.W.6 Dr. Sandip Patil, who performed the post mortem on the deceased Kalpana supports 6 the contents of the post mortem notes and 60% injuries sustained by the victim and he stated that the said burns are possible due to kerosene. 10. As regards both the dying declarations (Exh. 20 and Exh. 45), the dying declaration (Exh. 20) has been recorded by the Executive Magistrate and the dying declaration (Exh. 45) has been recorded by the investigating officer and on minute perusal of the contents of both the said dying declarations, it appears that both the said dying declarations connect the applicant with the alleged crime. 11. Further as regards the argument advanced by learned counsel for applicant that the applicant was on bail during the trial, it cannot be construed as consideration for grant of bail during the pendency of appeal since competent Court has convicted and sentenced the applicant. 12. Having the comprehensive view of the matter and after giving anxious consideration to the submissions advanced by learned counsel for the parties, we are of the considered view that prima facie there is evidence against the applicant and hence, this is not a fit case to enlarge the applicant on bail and, therefore, the 7 present application deserves to be rejected and same stands rejected accordingly. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri3056.09