1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRI. APPLICATION (APPA) NO. 281 OF 2010 IN CRI. APPEAL NO. 192 OF 2010. (SMT. VIMALBAI VITTHAL DHAVNE....VS... STATE OF MAHARASHTRA THR. PSO, MEHKAR.) Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Shri R.M.Daga with Shri M.V.Amle, Advocate for Petitioner. Shri S.J. Jichkar, A.P.P. for Respondent. CORAM : A.P. LAVANDE & P.D. KODE, JJ. DATED : JUNE 15, 2010. 1. Heard Shri Daga, learned counsel for the applicant and Shri Jichkar, learned A.P.P. for the respondent. 2. By this application the applicant seeks suspension of sentence and release of the applicant on bail. The applicant has been convicted by learned Additional Sessions Judge, Buldana in Sessions Trial No.89/2008 for causing murder of daughter-in-law Mangla by setting her ablaze by pouring kerosene on her person on 11.06.2008. The applicant, along with six others, was prosecuted for the offence punishable under Sections 498-A and 302 read with Section 34 of the Indian Penal Code. In course of trial the prosecution examined in all eight witnesses. The prosecution primarily relied upon two dying declarations at Exh.93 and Exh.77 made to Executive Magistrate and Police Sub-Inspector, respectively. The prosecution also relied upon oral dying declaration made by deceased Mangla to her mother P.W. 2 Anusayabai. The learned trial Judge, upon appreciation of evidence, acquitted all the accused of the offence punishable under Section 498-A of the Penal Code but convicted the applicant for the offence punishable under Section 302 of the Penal Code, relying upon dying declaration Exh.93 made to the Executive Magistrate. The learned trial Judge disbelieved the dying declaration made to P.S.I. 2 In so far as oral dying declaration made by the deceased to her mother Anusayabai is concerned, Anusayabai turned hostile in course of the trial and as such the same was not proved by the prosecution. 3. Mr. Daga, learned counsel for the applicant, placing reliance upon judgment of this Court in the case of Deorao Sonbaji Bhalerao Vs. State of Maharashtra, reported at 2008 ALL MR (Cri) 1921 submitted that since the Executive Magistrate (P.W. 8) Sanjay Markal did not depose as to the contents of the dying declaration the ratio laid down in the said case is squarely applicable in the present case. Mr. Daga further submitted that there is no other evidence to connect the applicant with the murder of her daughter-in-law. 4. Having considered the rival submissions and having perused the record, we are of the considered opinion that there is hardly any material to connect the applicant with crime of murder of daughter-in-law of the applicant. Considering the nature of evidence against the applicant, no purpose will be served by keeping the applicant behind the bars till the appeal is heard on merits, which may take substantial time. 5. In the result, therefore, the application is allowed. The applicant is ordered to be released on bail upon executing Bail Bond in the sum of Rs.Ten Thousand with one solvent surety in the like amount to the satisfaction of the learned trial Judge, subject to following conditions : a) The applicant shall not indulge in any criminal activity. b) The applicant shall not leave the jurisdiction of this Court without prior permission. c) The applicant shall personally remain present in the Court at the time of final hearing of the appeal. 3 6. Before concluding we are constrained to note that in spite of Division Bench judgment of this Court in the case of Deorao Bhalerao (cited supra), which was delivered on 30th June, 2008 and reported in the same year the prosecution has chosen not to prove the dying declaration in terms of the said judgment. 7. Perusal of the record discloses that the evidence of the Executive Magistrate was recorded on 04.02.2010. It was, therefore, expected of the prosecution to lead evidence in terms of the judgment in the case of Deorao Bhalerao (supra). 8. The State which has very primary duty of investigating crime is expected not only to investigate the matter to find out the real culprit but after the investigation is carried out to lead evidence to establish complicity of the accused by leading evidence. We are really constrained to observe that in spite of judgment in the case of Deorao Bhalerao the prosecution has not bothered to lead evidence in compliance with the said judgment, with the result that the trial in the present case has been rendered nothing but a mockery of justice. Least which is expected of the prosecuting agency of the State is that when the judgment is delivered by this Court laying down some ratio in some important matter the judgment is taken note of by all the concerned, more particularly by the Public Prosecutors conducting trials before the Sessions Court. 9. It has come to our notice in number of matters that the Sessions Trials are conducted casually by the learned Public Prosecutors/ Additional Public Prosecutors. We expect the Public Prosecutors/ Additional Public Prosecutors, who are appointed by the State Government to conduct the trial keeping in mind the law including the judgments delivered by the Apex Court and this Court. 10. In the present case, we are constrained to observe that Additional Public Prosecutors who conducted the trial, may be on account of ignorance of the judgment delivered by this Court, has chosen not to lead 4 evidence in so far as dying declaration Exh.93 is concerned in accordance with the law laid down in the case of Deorao Bhalerao which has prompted us to grant bail to the applicant. 11. We, therefore, deem it appropriate to send a copy of this order to the Principal Secretary, Law and Judiciary Department, Government of Maharashtra, who shall ensure that the judgment in the case of Deorao Bhalerao Vs. State of Mah. (2008 ALL MR (Cri) 1921) is circulated to all the Public Prosecutors/Additional Public Prosecutors, Sessions Courts/Additional Sessions Court in the State of Maharashtra so that in future Public Prosecutors/Additional Public Prosecutors conducting trials in the State are made aware of the ratio laid down in the said judgment. The Principal Secretary shall do so as expeditiously as possible and in any case, within a period of four weeks form the date of receipt of this order. The application stands disposed of accordingly. CRI. APPEAL NO. 192/2010. Heard learned counsel for the parties. ADMIT Call R & P. JUDGE JUDGE RR.