1910appa731.10.odt 1/4 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION (APPA) NO. 731 OF 2010 IN CRIMINAL APPEAL NO. 503 OF 2010 (Haridas Tulshiramji Abruk 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. ------------------------------------------------------------------------------------------------------------------------------------ Mr. Shriniwas Deshpande, Adv. (appointed) for the applicant. Mrs. S. S. Jachak, A.P.P. for the respondent-State. CORAM : A. H. JOSHI & A. R. JOSHI, JJ. DATED : 19TH OCTOBER, 2010. 1. Heard the rival submissions and the present bail application preferred by the present applicant-accused. 2. Criminal appeal No. 503 of 2010 is preferred by the appellant-applicant challenging his conviction for the offence punishable under Section 302 of the Indian Penal Code sentencing him to suffer rigorous imprisonment for life and fine of Rs. 500/-. 3. Present applicant-appellant was charged for murder of his wife by pouring kerosene on her person and setting her ablaze at her matrimonial home. The incident of burning occured on 11/9/2008. Immediately after the incident, though appellant was allegedly present at the house, neighbourers took the 1910appa731.10.odt 2/4 deceased to the hospital. During investigation, applicant- appellant was arrested and remained in custody during the trial, after conviction too. The appellant has presented application for release on bail during the pendency of criminal appeal No. 503 of 2010. 4. Perusal of judgment reveals that learned Sessions Court relied on the following evidence :- (i) Applicant-accused subjected his wife to ill-treatment and doubted her character. In the year 2004, he executed a writing on the stamp paper assuring not to indulge in such activity of giving cruel treatment to his wife. (ii) There was oral dying declaration of the deceased in the hospital when two witnesses had been to the hospital to see her condition. (iii) There is a written dying declaration given before the Executive Magistrate. The said dying declaration was recorded after the attending Doctor gave a certificate as to the condition of the victim to give the statement. (iv) Circumstantial evidence including that of the spot panchanama corroborates the case of prosecution as to involvement of the applicant in setting his wife on fire by pouring kerosene over her person. 5. Factual aspects relied upon by Sessions Court are seen well supported by record. 6. During the argument for bail it is submitted on behalf of the applicant that :- 1910appa731.10.odt 3/4 (a) There is belated filing of FIR by brother of the deceased. (b) Incident of burning occured on 11/9/2008 and on the same day victim died, however, on 13/9/2008 first information report was lodged. 7. Record discloses that on 11/9/2008 itself victim made dying declaration taking the name of her husband i.e. the present applicant as the person pouring kerosene over her person and setting her on fire. The dying declaration has been duly recorded. 8. In view of this, the first argument as to belated recording of FIR will not hold the good. Otherwise, also that is a question to be determined at the time of hearing of the appeal and not at this stage of bail. 9. Secondly, it is argued on behalf of the applicant- appellant that the oral dying declaration is doubtful in view of the admitted position that the Executive Magistrate repeatedly asked the question to the victim as to what she wanted to tell. However, initially the victim did not disclose anything and after some time she narrated the story of taking the name of the applicant-appellant as a person setting her on fire. 10. The silence of the victim at the initial stage and not giving her statement immediately much emphasized on behalf of the applicant-appellant. By pointing out this circumstance, it is submitted that the said dying declaration cannot be accepted. Even the question is a matter of appreciation of evidence and that can be done at the time of hearing of the appeal. 11. Pertinently enough it is not the case of appellant that the wife of accused was persuaded to make a dying declaration involving her husband. 1910appa731.10.odt 4/4 12. At this stage, prima facie material available against the applicant-accused does not warrant his release on bail during the pendency of the appeal. 13. Since the date of his arrest the applicant-appellant is in custody throughout during the trial. In these circumstances, no grounds are coming forward supporting suspension of sentence arrived after full trial and to grant bail to the applicant- appellant during the pendency of the appeal. 14. Hence, the present application for bail stands rejected. JUDGE JUDGE wwl