1 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. CRIMINAL APPLICATION NO.:4942 OF 2011 IN CRIMINAL APPEAL NO.:613 OF 2011 *** Azahruddin Badruddin Qazi And Anr VERSUS The State Of Mah *** Mrs. S.S.Jadhav, Advocate h/f Mr. Jadhav Satej S., Advocate for Petitioner Mr. S. B. Pulkundwar, A.P.P. for Respondent/State Authorities *** 1. Heard learned counsel Mr. Jadhav for the Applicants and learned A.P.P. Mr. Pulkundwar for the Respondent/ State Authorities. 2. In Sessions Case No.32 of 2011 four accused persons were tried for the offence punishable under section 302 read with 34 of Indian Penal Code. On trial, learned trial Court, by its judgment and order dated 27th September, 2011, convicted original accused no.1 Azharuddin S/o Badroddin Qazi and original accused No.4 Raisuddin S/o Badroddin Qazi for the offence punishable under section 302 read with 34 of I.P.C. Both of them have 2 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. been sentenced to suffer R. I. for life and to pay fine of Rs.1,000/- with default stipulation. Original Accused No.1 Azharuddin and Accused No.4 Raisuddin have been granted set off under section 428 Cr.P.C. Original Accused No.2 Badroddin S/o Fakhroddin Qazi and original Accused No.3 Kalimoddin S/o Badroddin Qazi are acquitted of the offence with which they were charged. 3. Amongst the four accused persons, Accused No.1 Azharuddin and Accused No.4 Raisuddin, who have committed offence under section 302 read with 34 I.P.C. are applicants in this criminal application seeking bail. Appeal is also by these two accused persons which has been admitted by this Court. 4. According to the prosecution, the Applicant no.1 and deceased Hasina were married and residing at Kumwada, Juna Bazzar, 3 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. Beed separately in a room of house. It is alleged by the prosecution that on 1st November, 2011 P.W. 7 Shankar Rathod was working as Police Head Constable at Police Outpost Civil Hospital, Beed. He received an information vide Exhibit-41 that Hasina was admitted due to burns in the hospital at 2.15 p.m. He immediately met Dr. Kulkarni and took him to burn ward where Hasina was admitted. P.W.11 Dr. Upendra Devidas Kulkarni examined the patent Hasina and gave opinion that she was conscious to give statement. P.W.7 after satisfaction that Hasina was keeping good mental and physical health, consciousness, decided to record her statement. According to the prosecution, deceased Hasina disclosed that on the date of incident there was quarrel amonst accused No. 1, her husband Azharuddin along with his brothers. Azharuddin allegedly was having 6 4 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. brothers at the time of the incident. In the quarrel, Accused No.1/ husband of deceased Hasina and accused No.4 Raisuddin were not involved. Deceased Hasina tried to rescue quarreling brothers. According to her, she was pushed away by her husband/ Accused No.1 Azharuddin and Accused No.4 Raisuddin. Accused No.1 Azharuddin / her husband poured kerosene from 4 ltrs. can on her person and her brother in law Accused No.4 Raisuddin set her ablaze by throwing turning match stick on her person. That is how she sustained burn injuries. According to deceased Hasina, original Accused Nos.2 and 3 were present, however, they did not extinguish fire. Based on the dying declaration/ statement of deceased Hasina, recorded by P.W.7 Shankar, crime was registered at No.114 of 2010 for offence under section 307 read with 34 of I.P.C. As we have referred to in the 5 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. forgoing paragraphs, on trial the accused Nos.1 and 4 have been convicted for offence punishable under section 302 read 34 I.P.C. 5. Learned counsel for the Applicants submits that the Applicant No.1/ husband of deceased Hasina tried to extinguish fire on the person of deceased Hasina and sustained burn injuries. According to her, Hasina committed suicide by getting herself ablaze. She has also taken us to the material which is brought on record. 6. Learned A.P.P. points out from the finding as well as material on record that the dying declaration has been recorded by following requisite procedure, is trustworthy, truthful and has been accepted by the learned trial Court. 7. After hearing learned counsel for the parties, in our opinion, it is not a fit case wherein imprisonment awarded to the present 6 FARAD CONTINUATION SHEET NO. IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.: 4942 OF 2011 Office Notes, Office Memoranda of Coram, Court’s or Judge’s orders. appearances, Court’s orders or directions and Registrar’s orders. CORAM: S.B.DESHMUKH & A.M.THIPSAY, JJ. applicants can be suspended under section 389 Cr.P.C. granting bail in their favour. Prima facie, there is material on record to connect the present applicants to offence punishable under section 302 I.P.C. We are not inclined to grant bail in favour of the Applicants. It is fairly pointed out by learned counsel for the Applicants that both the applicants were not on bail during trial. 8. However, looking to the nature of the allegations and material brought on record, we are inclined to accept the submission of learned counsel for the applicants for expeditious hearing of the appeal. 9. Criminal Application stands rejected. However, hearing of the appeal is expedited. [A.M.THIPSAY, J.] [S.B.DESHMUKH, J.] Dated:19/12/2011. ans/4942