1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 70/09 IN CRIMINAL APPEAL NO. 439 OF 2009 Anita Bholanath Wanjari .vs. State of Maharashtra _________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. CORAM : A.P. LAVANDE & P.B. VARALE, JJ. DATED : NOVEMBER 11, 2009. Heard Mr. S.V. Manohar, learned Counsel for the applicant/appellant and Mr. J.B. Jaiswal, learned A.G.P. for the respondent. 2] The present application is moved by the applicant (original accused) for suspension of sentence and for grant of bail. The applicant (original accused) was charged for committing offence under Section 302 of the Indian Penal Code and the learned Ad-hoc Additional Sessions Judge-2, Nagpur in Sessions Trial No. 58/02 convicted the applicant for the offence punishable under Section 302 of the Indian Penal Code and sentenced her to suffer imprisonment for life and also to pay a fine of Rs.1000/- and in default of payment of fine, to suffer further R.I. for six months. 2 3] It is the case of the prosecution that the applicant set ablaze Mangala Wanjari on 3.6.2001 at about 11 A.M. at village Bhilgaon. Deceased Mangala Wanjari was sister-in-law of the applicant/accused and the applicant was causing ill-treatment to the deceased Mangala on the ground of dowry and committed her murder by setting her on fire. 4] Mr. S.V. Manohar, learned Counsel for the applicant, submitted that the findings recorded by the learned trial Judge are contrary to the evidence on record. He further submitted that the learned Court below has erred in appreciating evidence and arrived at erroneous conclusions and as such, there are strong grounds to consider the case of the applicant and to release the applicant on bail during the pendency of the appeal as well as to suspend the substantive sentence imposed upon the applicant. 5] Mr. Manohar further submitted that the prosecution case rests upon the dying declarations. Mr. Manohar submitted that there are two dying declarations on record, i.e. one recorded by the police official on 4.6.2001 and the other recorded by the Executive Magistrate, Nagpur on 5.6.2001. Mr. Manohar submitted that there is a vast variance in these two dying declarations. He submits that the dying declarations not only vary from each other but they are diagonally opposite and contrary to each other. 3 6] Per contra, Mr. J.B. Jaiswal, learned A.P.P. for the respondent, submitted that the unfortunate death of the deceased occurred within three months of the marriage. The two dying declarations recorded by the police officials are immediately after the incident and the third one is recorded by the Executive Magistrate. There is no reason to disbelieve these witnesses who are independent witnesses and who have recorded the dying declarations immediately. 7] In view of the rival contentions raised by the learned Advocates, we proceed to scrutinize the same. The perusal of the dying declaration (Exh.37) which is proved through PW.3 P.M. Rangari discloses that the deceased Mangala stated that on 3.6.2001 she was at her residence. It was further stated that as she was not keeping good health, she was sleeping. At that time, the accused Anita picked up a quarrel with her on the ground that she is not the lady of her approval and poured kerosene on the person of Mangala and set her on fire. A hue and cry was made by Mangala and on hearing the hue and cry made by Mangala, her mother-in-law Shantabai came on the spot and tried to extinguish the fire and took her to Mayo Hospital for medical treatment. 8] Mr. Manohar submitted that prior to the dying declaration (Exh.37), there was one dying declaration recorded by the Head Constable attached to the Mayo Hospital. The said dying 4 declaration is annexed to the application. In the said dying declaration dated 3.6.2001 recorded by one Head Constable it was stated by Mangala that she was not keeping good health on account of epilepsy and was under treatment of one Dr. Nitnaware. It is further stated in the said dying declaration that she was fed up with the disease and she poured kerosene on her person and set herself on fire. It is further stated that after hearing noise, her mother-in-law Shantabai rushed to the spot and extinguished fire on her and thereafter she was admitted to Mayo Hospital. Mr. Manohar submitted that the dying declaration dated 3.6.2001 (Exh. 18) specifically makes mention that Mangala was fed up with her disease and she set herself on fire. Mr. Manohar submitted by referring to Exh. 18 that Exh.18 is an admitted document which is the first dying declaration in point of time and as such, is of utmost importance. He further referred to Exh.19 which is an intimation recorded by Head Constable Mahadeo who was attached to Mayo Hospital Police Booth and it is mentioned that Mangala set herself on fire on 3.6.2001 at 11 A.M. on the ground of her illness and she is admitted to Mayo Hospital in Ward No. 24. Mr. Manohar further referred to Exh.20 which is an intimation forwarded by Head Constable Mahadeo to House Incharge, Mayo Hospital, wherein also it is mentioned that Mangala set herself on fire on the ground of her illness. Mr. Manohar further drew our attention to Exh.22 which is an intimation to Police Station Officer, Panchpaoli, Nagpur through Executive Magistrate, Nagpur. By the said intimation, it is 5 informed by the Executive Magistrate that in view of the requisition received by him when he proceeded to Ward No. 24 for recording the dying declaration of Mangala, it was informed by Dr. Choudhary that the patient is not in condition to make declaration. Mr. Manohar, in view of Exh.22, submitted that in the backdrop of the opinion of Dr. Choudhary that Mangala was not in a fit condition to make statement, the dying declaration recorded by the Executive Magistrate dated 5.6.2001 raises a serious doubt and suspicion. Mr. Manohar submitted that the dying declaration recorded by the Executive Magistrate dated 5.6.2001 further raises suspicion in view of Exh.45. Exh.45 is the intimation to the Mayo Medical College Hospital, Nagpur forwarded by the Executive Magistrate seeking his opinion about the condition of the patient. The perusal of Exh.45 discloses that there is an endorsement on Exh.45 stating that “patient is fit for statement”. Mr. Manohar brought to our notice that the endorsement made under this statement is not by Dr. Choudhary, the Medical Officer but it is made by somebody on behalf of Dr. Choudhary. In view of the endorsement Exh.45, Mr. Manohar submitted that it is unsafe to rely on the dying declaration Exh. 43 recorded by the Executive Magistrate. In the dying declaration recorded by Executive Magistrate dated 5.6.2001, Mangala replied to question No.3 that while she was sleeping, her sister-in-law Anita (original accused) poured kerosene on her person and set her on fire. She further replied to question no.5 that her sister-in-law was asking for Sofa, Colour T.V., Fridge, Phone 6 and Hero-Honda as the dowry articles. Mr. Manohar by referring to the dying declaration Exh. 43 dated 5.6.2001 submitted that there is a vast variance in the dying declarations dated 4.6.2001 and 5.6.2001. In the dying declaration dated 4.6.2001 Mangala submitted that there was a quarrel picked up by her sister-in-law and the sister-in-law set her on fire whereas in the dying declaration dated 5.6.2001 Mangala stated that her sister-in-law was demanding certain articles as dowry articles. He further submitted that it is also replied by Mangala in the dying declaration dated 5.6.2001 that she was sleeping and as soon as she woke up because of the fire, she saw the sister-in-law in front of her. Mr. Manohar submitted that in view of the contrary versions in the dying declaration dated 4.6.2001 and 5.6.2001 as well as in view of the improvement made about the dowry demand which is referred in the dying declaration dated 5.6.2001, it is wholly unsafe to rely on the dying declarations. 9] We have perused the record and in view of the variance, improvement in the dying declarations dated 4.6.2001 and 5.6.2001 as well as in view of the documents on record, i.e. Exhs. 18, 19 & 20, we find considerable merit in the submissions of Mr. Manohar, the learned Counsel for the applicant. The perusal of the record further shows that PW.9 Ramdas Parteki deposed that the applicant (original accused) was arrested after six months of the incident. There is nothing on record to show that the applicant was 7 absconding. The submission made by Mr. Manohar that the applicant is a lady and she was on bail during the trial and the applicant had not misused the liberty granted to her has not been disputed by the learned A.P.P. 10] In our considered opinion, the applicant has made out a case to show indulgence and use discretion in favour of the applicant. Accordingly, the application deserves to be allowed. The same is accordingly allowed and the applicant is directed to be released on bail on her executing a P.R. Bond in the sum of Rs. 10,000/- (Rupees Ten thousand) and furnishing one surety in the like amount to the satisfaction of trial Judge. Needless to mention that the observations made by us are prima facie in nature for the limited purpose of disposing of application for suspension of sentence and grant of bail. JUDGE JUDGE. J.