1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR Criminal Application No. 429 /2010 IN Criminal Appeal No. 305 /2010 [Kailash Baliram Popalghat and two others vs. State of Maharashtra ) Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. Mrs.Neeta Jog, Advocate for the applicants, Mr.V.A. Thakre, APP for the respondent-State ----- CORAM : A.H. JOSHI AND A.R. JOSHI, JJ. DATE : 05th October. 2010. Heard. 2. This is an application for bail by suspension of sentence. 3. The applicants have been convicted by learned 2 nd Ad-hoc Additional Sessions Judge, Khamgaon in Sessions Case No. 57/2009 for offence punishable under sections 302 read with section 34 of the Indian Penal Code and sentenced to suffer R.I. for life and to pay a fine of Rs. 500/-; in default, to suffer R.I. for three months. 2 4. The applicants have pressed in service following grounds :- (a) the judgment and order of conviction is patently erroneous; (b) the findings recorded by the learned Sessions Court are perverse; (c) the evidence relied upon by the learned Sessions Judge is unconscionable; (d) the learned Sessions Judge has discarded second dying declaration recorded by the Police Sub Inspector ; whereas the first dying declaration recorded by the Magistrate on 16.4.2009 ought not have been believed for the same reasons for which the subsequent dying declaration has been discarded; (e) the version of witnesses who have supported the prosecution do not inspire confidence. (f) there are no eye witnesses; (g) the cross-examination of Medical Officer (PW 15) does not suggest that she had examined the person making dying declaration for enabling herself to certify that Vandana was fit in health and mind while giving dying declaration; (h) the prosecution story is concocted and unbelievable and, therefore, the accused/applicants are entitled to bail. 3 5. Learned Advocate Mrs. Neeta Jog for applicants has while strenuously arguing the case, read out various depositions and dying declarations. 6. Learned Advocate for the applicants has placed reliance on the judgment of the Apex Court in the case of State of Andhra Pradesh vs. P. Khaja Hussain reported in (2009) 15 SCC 120. 7. The prosecution story which has emerged from dying declaration (Exh.39) is that:- On 15.4.2009 at 4.00 p.m., I had gone to a flour mill, at that time Vikas Kailash Popalghat slapped me. Due to this I came back home. I (deceased) was alone at House. Kailash, Vikas and Sau. Chandrakala Popalghat together came to my house. They poured kerosene on my person and set me ablaze. I shouted. Villagers came running and poured water on my person and extinguished the fire. Mother was out of station for marriage. My mother took me to Government Hospital at Buldana and admitted me. All the above three accused be punished. Therefore, I am giving this written statement. 4 8. It is seen from the testimony of the PW Nos. 4 & 5 that what happened at the flour mill was told to her by Vandana. 9. What this Court prima facie observes is that the prosecution story is in a very narrow compass, namely, the incident of slapping on the back of Vandana had occurred on 15.4.2009; she, in turn, slapped the accused no.2. All accused persons came to the house of the prosecutrix when she was alone on the fateful day, poured kerosene on her person and set her ablaze. 10. The fact that various witnesses have become hostile is not relevant to the incident and the incident is proved by dying declaration and the statement of the deceased given by her prior to the incident to her mother, which contained two things:- (a) the incident which occurred day prior; and, (b) the oral dying declaration given to mother PW 1, by the deceased. 11. The defence witnesses brought by the prosecution are aimed at proving alibi. Upon appreciation of evidence, the trial Court did not believe those witnesses. 5 12. This is not a stage where word bare and line bare scrutiny of evidence is contemplated. Total re-appreciation of evidence for arriving at second conclusion is not expected at this stage. This Court has to see if from overall look on the evidence the case gives a feel of turning into acquittal. 13. From what appears prima facie on perusal of evidence and judgment impugned is that the evidence aptly discloses involvement of the accused in commission of the crime. Dying declaration is unambiguous. Exhs. 39 ad 61- certificates of the Medical Officer go to prove that deceased was conscious and in the state of health and mind before, during and after giving dying declaration. 14. The fact that she was put to oxygen supply for breathing does not in any manner destroy the status of fitness of the person making the statement to be unable to make a statement; lest the Doctor would never have certified the patient to be fit. 15. In these premises, present is the case where the involvement of the accused is vivid and visible, and does not create any doubt in mind about their involvement. 16. The Court has perused the citation 6 relied upon by the applicant. When multiple dying declarations are relied upon and the trial Court or the Appellate Court considers that such multiple dying declarations can lead to room for suspicion, it is obvious that those need not be relied upon. In the present case the dying declaration which is second in sequence, has not been relied upon by the Sessions Court. The first dying declaration is is seen believable. The judgment relied upon, therefore, does not lend any support to the case of the applicants. 17. In the result, the application for bail and suspension of sentence has no merit. The same is rejected. Judge Judge sahare