1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 668 OF 2009 IN 1. CRIMINAL APPEAL NO.652 OF 2009 Sandip @ Bhavdu Sudhakar Niphade .. Applicant Vs. The State of Maharashtra .. Respondent Mr. S.V. Kotwal, for the applicant Mr. S. S. Pednekar, APP for the respondent-State CORAM: MRS. RANJANA DESAI & MRS. MRIDULA BHATKAR, JJ. DATED :- 20 th January, 2010 P.C. 1. The applicant was tried alongwith two others by the Sessions Court at Niphad for the offences punishable under Section 302 r/w 34, 392 r/w 34, 120-B r/w 34, 452 r/w 34 and 411 r/w 34 of the Indian Penal Code ( for short ‘the IPC’). By order dated 15/4/2009, learned Sessions Judge acquitted accused 2 and 3. He however convicted the present applicant, who is original accused no.1, for the offence punishable u/s 302 of the IPC and sentenced him to suffer Rigorous Imprisonment for life and to pay fine of Rs.1000/-, in default to suffer further R.I. for one year. The applicant is also convicted for the offence punishable under 2 Section 452 of the IPC. The applicant was acquitted of the offence punishable under Section 392 r/w 34, 120-B r/w 34, and 411 r/w 34 of the IPC. 2. The appeal filed by the applicant is already admitted. The applicant has preferred this application for bail. 3. We have heard learned counsel Mr. S. V. Kotwal for the applicant. We have also heard learned APP for the State. 4. The incident in question took place on 27.10.2005 at about 2 p.m. The case of the prosecution appears to be that the applicant had taken some loan from deceased Shalinibai and the deceased was repeatedly asking the applicant to pay back the loan amount. It is further the case of the prosecution that on 27.10.2005 the applicant came to the house of the deceased twice and asked for wooden plank from the deceased. The deceased refused to give him wooden plank. On the third occasion the deceased again refused to give him wooden plank and therefore the applicant threw rope on her neck and tried to strangulate her. The deceased resisted and fell on the ground. The applicant removed her ornaments and money and he then took out match box and 3 set her saree on fire. The deceased was shifted to Civil Hospital, Nashik. Statement of the deceased was recorded on 7.11.2005 which was treated as F.I.R. 5. It is pertinent to note that the deceased survived for one month after the incident. She died on 29.11.2005. Thereafter Section 302 was added by the Police. The prosecution relied on the oral dying declaration which is said to have been made before a social worker on 6.11.2005. The prosecution also relied on the dying declaration dated 7.11.2009 made by the deceased to the police and dying declaration dated 8.11.2005 recorded by the Special Executive Magistrate. It is however significant to note that the brother of deceased PW-1 has stated in his evidence that one or two days after the incident the deceased was able to talk and at that time she told him that the accused had set her on fire. If that is so, it does not stand to reason as to why the police did not record her statement till 7.11.2005. 6. It appears that the brother of the deceased took her to the Hospital. However, the prosecution has not examined him. Learned counsel Mr. Kotwal submitted that the brother of the deceased had informed the police that accidentally the saree 4 worn by the deceased fell on stove and she caught fire. Non examination of the brother of the deceased, therefore, in our prima facie opinion may have adverse effect on the prosecution case. We also find from the postmortem notes that the deceased had suffered 20% superficial to deep burns septicemia. The cause of death is stated to be 20% superficial to deep burns with septicemia. We are therefore, prima facie of the opinion that even if it is held that it is the applicant who threw the match stick on the deceased and set her saree on fire, the offence under Section 302 may not be made out. In the circumstances of the case and considering the fact that during the trial the applicant was on bail, we are of the opinion that the applicant ought to be released on bail. Hence the following order. O R D E R i. The applicant Sandeep @ Bhavdu Sudhakar Niphade is ordered to be released on bail in the sum of Rs.25,000/- with one one or two sureties to make up the amount. ii. While on bail, the applicant shall report to Wadner- Bhairav Police station in Tq. Chandwad Dist. Nashik, once in a month. iii. The application is disposed. ( MRS. MRIDULA BHATKAR, J.) ( MRS.RANJANA DESAI, J.) jpc/