1 appa158110 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1581 OF 2010 IN CRMINAL APPEAL NO. 1280 OF 2004 1. Sitabai Vithal Kharat 2. Vithal Babu Kharat ...Applicants V/s. The State of Maharashtra ...Respondent Mr. Ravi P. Kadam for the Applicants Mr. H.J. Dedhia, A.P.P., for the State. CORAM: A.M. KHANWILKAR AND A.R. JOSHI, JJ. DATE: 12TH JANUARY, 2011 P.C.:- Heard the learned counsel for the applicants and the learned A.P.P. 2. This application is for bail during the pendency of the appeal. The appeal challenges the judgment and order passed by the V Additional Sessions Judge, Satara, dated 21st February, 2003 2 appa158110 convicting the appellants for offences punishable under Sections 323, 498-A, 504, 506 and 302 read with Section 34 of the Indian Penal Code. 3. It is not in dispute that the applicants are continuously in jail since May, 2002. From the record, it appears that at least applicant No. 2 is a Senior Citizen. 4. The prosecution case essentially hinges on the Dying Declaration given by the deceased (Exhibits 22 and 28). Indeed, in this Dying Declaration, she has referred to the specific role of both the applicants. However, what is intriguing to notice is that the deceased has referred to the fact that besides the applicants / accused Nos. 1 and 2, Shevantabhai Hanmant was also present on the scene at the relevant time. The learned A.P.P., in all fairness, submits that the Investigating Officer did not record statement of Shevantabhai Hanmant. Besides, the Investigating Officer has not offered any explanation for this lapse or omission. Similarly, the Dying Declaration refers to the fact that when the deceased shouted for help, immediately her neighbour Dhondiba Kharat arrived on the scene and tried to extinguish the fire. Although police statement of Dhondiba Kharat has been recorded by the Investigating Officer, he was not examined as prosecution witness for the 3 appa158110 reasons best known to the prosecution. The Investigating Officer also did not offer any explanation for non-examination of Dhondiba Kharat as prosecution witness. It is the defence who went ahead and examined Dhondiba Kharat, who has, in a way, supported the case of the defence. 5. Considering these drawbacks in the prosecution case and taking overall view of the matter, in the interest of justice, in our opinion, the applicants deserve to be enlarged on bail on the following conditions:- (i) The applicants shall furnish bail bonds in the sum of Rs.10,000/- each with one or two sureties in like amount. (ii) The applicants shall report to the nearest police station of their residence once in a month on the first Monday of every English Calendar month between 9 a.m. to 12.30 p.m. (iii) The applicants shall furnish their latest residential address to the local police station and shall not travel outside Mumbai without prior 4 appa158110 intimation of 48 hours in writing to the local police station and also disclose their travel programme and the contact place where they would visit. 6. Application is allowed on the above terms. A.R. JOSHI, J. A.M. KHANWILKAR, J.