1 cri-appa-1010-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1010 OF 2010 IN CRIMINAL APPEAL NO. 587 OF 2010 1. Shri. Bhagwan Shamrao Sawant ] Aged 43 years, ] 2. Smt.Kesharbai Shamrao Sawant ] Aged 75 years, ] both resident of Nampur, Taluka ] Satana, Dist. Nashik ] [At present lodged in Jail custody ] at Malegaon Nashik] ]..Applicants [Ori. Accused] Vs. The State of Maharashtra ] (At the instance of Jaikheda Police St. ] District Nashik) ]..Respondent .... Mr. Shirish Gupte Senior Counsel for Applicants Mr. Rajesh More APP for the State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : AUGUST 16, 2010 P.C.: 1 The applicants are original accused 1 and 2 in Sessions Case No. 126 of 2007. The 1st applicant is the son of the 2nd applicant. 2 cri-appa-1010-10 Applicants and one Rahul (original accused 3) were charged with the offences punishable under Sections 302 and 451 read with section 34 of the IPC. The case of Rahul was separated as he was a juvenile. The applicants were tried for the said offences. The 1st applicant was convicted for the offence punishable under Section 302 r.w. 34 of IPC and sentenced to life imprisonment and to pay a fine of Rs.2000/- in default to suffer R.I. for six months. He was also convicted for the offence punishable under Section 451 r.w. 34 of the IPC and sentenced to R.I. for six months and to pay a fine of Rs.1000/- in default to suffer R.I. for one month. The 2nd Applicant was convicted for the offence punishable under Section 302 r.w. 34 of IPC and sentenced to life imprisonment and to pay a fine of Rs. 500/- in default to suffer S.I. for 15 days. She was also convicted for the offence punishable under Section 451 r.w. 34 of the IPC and sentenced to S.I. for 15 days and to pay a fine of Rs. 100/- in default to suffer S.I. for 3 days. 2 The case of the prosecution appears to be that there was some land dispute between Naval the husband of deceased Vandana and the accused about the land. Naval is the brother of the 1st applicant and son of the 2nd applicant. Admittedly, civil suit is pending between the two. The incident in question is stated to have arisen out of the land 3 cri-appa-1010-10 dispute. The prosecution case is that on 5th March, 2006 at about 11 a.m. the deceased and her three daughters were harvesting wheat crop in their agricultural land. At that time, the accused came there and objected to the deceased harvesting the wheat crop. Accused 1 is stated to have poured kerosene on the deceased while accused 2 and 3 caught hold of the hands of the deceased. Thereafter, accused 1 is stated to have lit the match-stick and set the deceased on fire. Thus, the role attributed to the 2nd applicant is that she held hands of the deceased which facilitated accused 1 to pour kerosene on her and set her on fire. 3 We have heard Mr. Gupte, learned senior counsel appearing for the applicants. He submitted that the prosecution has failed to prove its case beyond reasonable doubt against the applicants. He submitted that in any event, so far as the 2nd applicant is concerned, as she is more than 75 years of age, she should be released on bail. Mr. Gupte drew our attention to the observations made by the trial Court in paragraph 26 of the impugned judgment that the 2nd applicant is more than 75 years old and she is not in a position to move around. Counsel submitted that therefore, her case may be considered for grant of bail. 4 cri-appa-1010-10 4 As against this, Mr. More, learned APP has strenuously opposed the grant of bail. He submitted that the deceased has made two dying declarations. They are at Exhibits 31 and 36. Learned APP submitted that Exhibit 31 is recorded by Police Officer and Exhibit 36 was recorded by the Special Executive Magistrate. Learned APP submitted that both the dying declarations are consistent as regards the role attributed to the applicants. He further submitted that while 1st applicant poured kerosene on the deceased, the second applicant held hands of the deceased and facilitated the 1st applicant in setting the deceased on fire and therefore, bail should be denied to the applicants. Learned APP submitted that the prosecution has proved that there was common intention on the part of the applicants. Learned APP submitted that, therefore, the application for bail may be rejected. 5 So far as the 1st applicant is concerned, we are not inclined to grant bail to him. As rightly pointed out by the learned APP, both the dying declarations are consistent and major role is attributed to the 1st applicant viz. he poured kerosene on the deceased and set her on fire. It must be stated here that the dying declarations are corroborated by the eye witness testimony of PW 3 Sunita the daughter of the deceased. So far as the 2nd applicant is concerned, it is true that in both the dying 5 cri-appa-1010-10 declarations she has been assigned role that she held hands of the deceased. Prima facie, it does appear that she made it possible for applicant 1 to pour kerosene on the deceased and set her on fire. However, one cannot loose sight of the fact that the 2nd applicant is more than 75 years old and as we have noted earlier the learned Judge has noted that she is unable to move around. In the circumstances, in our opinion, a little kindly approach needs to be adopted. Hence, we are of the opinion that 2nd applicant deserves to be released on bail. Hence, we pass the following order: ORDER 1) Prayer for bail of 1st applicant- Bhagwan Shamrao Sawant is rejected. 2) The 2nd Applicant Kesharbai Shamrao Sawant is ordered to be released on bail in the sum of Rs.10,000/- (Rs. Ten thousand only) with one or two sureties to make up the said amount. 3) Application is disposed of. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]