((-1-)) mst IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.1403 OF 2008 IN CRIMINAL APPEAL NO.1305 OF 2008 Kiran Shankar More Applicant (Appellant) versus The State of Maharashtra Respondent Mr.Rameshwar Gite for applicant. A.T.Javeri, APP for State. CORAM : A.S.OKA, J. DATE : 14th January 2009 PC : 1. The appeal is already admitted where the challenge is to the conviction of the applicant for the offence punishable under section 304(II) of the Indian Penal Code. The substantive sentence is ten years rigorous imprisonment. He has been directed to pay a fine of Rs.10,000/-. The contention of the learned counsel appearing for the applicant is that apart from the fact that there are serious infirmities in the prosecution case and there is non application of mind by the learned Trial Judge, the applicant was on bail during ((-2-)) pendency of the trial and as the appeal is not likely to reach for final hearing in near future, the applicant is entitled to be enlarged on bail. He has taken me through the notes of evidence and the impugned judgement. 2. The learned APP opposed the application by relying upon a decision of the Apex Court in the case of State of Maharashtra v/s. Madhukar Wamanrao Samarth (2008-DSLS [Soft.]-388). Her submission is that the fact that the accused was on bail during the trial is not at all a relevant factor. Her further submission is that while considering the prayer for bail in appeal, the Court has to consider the gravity of the offence, the sentence imposed and several other factors. She submitted that considering the gravity of the offence, this is not a case where the applicant can be enlarged on bail. 3. I have given careful consideration to the submissions. The applicant was prosecuted for an offence punishable under section 302 of the Indian Penal Code. The name of the wife of the applicant was Nirmala. She had studied up to 10th standard. The allegation is that after ((-3-)) marriage even for one month she was not treated well by the applicant. It is alleged that the applicant used to ill-treat his deceased wife and used to beat her frequently. 4. On 20th March 2007, as per the case of prosecution, Rangapanchami was being celebrated. The deceased Nirmala had brought fuel wood in the house and was sorting the vegetables in the house. At that time the applicant-accused entered the house and asked her as to why she used to smile at the young boys of the village. Though the deceased Nirmala denied all this, the applicant continued to question her character. When the deceased Nirmala was in the kitchen, the applicant-accused picked up kerosene and poured the same on her person and lighted her with a match stick. The case of the prosecution is that the applicant himself started shouting that his wife had caught fire. Due to the burn injuries, the deceased expired on 1st June 2006. 5. For the incident of 20th March 2006, FIR was registered on 30th March 2006. Apart from the fact that the deceased died nearly two ((-4-)) months and ten days after the incident, there is a delay of ten days in lodging the FIR.. The learned counsel appearing for the applicant has invited my attention to the observations made by the learned Trial Judge in paragraph 30 of the judgement which are based on the evidence of PW-2 Pandurang. He invited my attention to paragraph 5 of his examination in chief. In paragraph 5 the witness stated that "Thereafter she was shifted to Civil Hospital, Nashik. I had gone to see her after 4 to 5 days. When I saw her, she was alive. Her upper part of the body i.e. chest was seen with burn injuries. I asked her as to how it had happened. She said, "that she was not willing to live any longer that she had lived her life, and she wanted to end her life." Thereafter she started weeping. I did not wait there and left the hospital. Police had recorded my statement on the next day of the incident. Police had asked me if she was set on fire or whether if she had set on fire to herself. I stated to the police that I was not aware of as to how Nirmala suffered burn injuries. She was there in Civil Hospital, Nashik for about two months". ((-5-)) 6. In his judgement in paragraph 30, the learned Judge has observed as under :- "30. ... ... With this discussion, I answer Point No.2 in the affirmative holding that from the circumstances brought on record from the document Ext.38 also, from the evidence of village police patil Pandurang Kothule who has proved document Ext.22 in which it was categorically stated that the husband of Nirmala has caused these burn injuries by pouring kerosene on her person and by throwing burning match stick at her." 7. The learned APP has relied upon the decision of the Apex Court in the case of State of Maharashtra Vs. Madhukar Smarth (supra). In paragraph 11 the Apex Court has observed thus :- "11. It is true that the parameters to be applied in cases where life or death sentence is imposed, may not be applicable to other cases. But, the gravity of the offence, the sentence imposed and several other similar factors need to be considered by the Court. The fact that accused was on bail during trial is certainly not a relevant factor. This position has been fairly conceded by learned counsel for the respondents. ... ..." It must be noted here that the observation of the Apex Court that the fact that the accused was on bail during trial is not a relevant factor, is based on the concession made by the learned counsel for the accused before the Apex ((-6-)) Court. 8. The present appeal is of the year 2008. As of today, there are appeals of the year 1995-1996 pending in this Court where the accused are in jail. It will be necessary to refer to the decision of the Apex Court in the case of Bhagwan Rama Shinde Gosai and others Vs. State of Gujarat ([1999]4-SCC-421) and in paragraph 3 of the said decision which reads thus :- "3. When a convicted person is sentenced When a convicted person is sentenced When a convicted person is sentenced to to to a fixed period of sentence and when he a fixed period of sentence and when he a fixed period of sentence and when he files files files an appeal under any statutory an appeal under any statutory an appeal under any statutory right, right, right, suspension of sentence can be suspension of sentence can be suspension of sentence can be considered considered considered by the appellate court by the appellate court by the appellate court liberally liberally liberally unless there are exceptional unless there are exceptional unless there are exceptional circumstances. circumstances. circumstances. Of course if there is any Of course if there is any Of course if there is any statutory statutory statutory restriction against suspension restriction against suspension restriction against suspension of of of sentence it is a different matter. sentence it is a different matter. sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any But if for any But if for any reason reason reason the sentence of a limited duration the sentence of a limited duration the sentence of a limited duration cannot cannot cannot be suspended every endeavour be suspended every endeavour be suspended every endeavour should should should be made to dispose of the appeal be made to dispose of the appeal be made to dispose of the appeal on on on merits merits merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When When When the appellate court finds that due the appellate court finds that due the appellate court finds that due to to to practical reasons such appeals cannot practical reasons such appeals cannot practical reasons such appeals cannot be be be disposed of expeditiously the disposed of expeditiously the disposed of expeditiously the appellate appellate appellate court must bestow special court must bestow special court must bestow special concern concern concern in the matter of suspending the in the matter of suspending the in the matter of suspending the sentence. sentence. sentence. So as to make the appeal So as to make the appeal So as to make the appeal right, right, right, meaningful and effective. Of meaningful and effective. Of meaningful and effective. Of course course course appellate courts can impose appellate courts can impose appellate courts can impose similar similar similar conditions when bail is granted. conditions when bail is granted. conditions when bail is granted." ((-7-)) (Emphasis added) The said decision of the Apex Court in the case of Bhagwan Rama Shinde Gosai and others (supra) has been consistently followed. One such case is Commissioner of Wealth Tax, Delhi III, New Delhi Vs. Hari Shankar & Bros. ([2001]-10-SCC-339). 9. It will be also necessary to refer to the decision of the Apex Court in the case of Kishori Lal Vs. Rupa and others ([2004]7-SCC-638) which has been relied upon by the Apex Court in its latest decision in case of State of Maharashtra Vs. Madhukar Samarth (supra). It must be stated here that in the case of Kishori Lal (supra) the Apex Court was dealing with the question of granting bail pending appeal by invoking Section 389 of the Code of Criminal Procedure, 1973 where the conviction of the appellant-accused was under section 302 of the Indian Penal Code. In the said decision, the Apex Court held that the fact that during the trial the accused was on bail is not of much significance and merely because the accused was on bail pending trial and there is no allegation of mis-use of ((-8-)) liberty, it does not, per se, warrant suspension of execution of sentence and grant of bail. In paragraph 4 of the said decision, the Apex Court has observed thus :- "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of the sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording reasons in writing clearly indicates that there has to be careful consideration of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine." In paragraph 8 of the said decision the Apex Court observed that in a case involving conviction under section 302 of the Indian Penal Code it is only in exceptional cases that the relief of suspension of sentence can be granted. 10. Perusal of the latest decisions of the Apex Court show that the principles laid down in its earlier decision in the case of Bhagwan Ramji Shinde (supra) have not been disturbed. ((-9-)) However, the gravity of the offence and other relevant factors cannot be ignored by this Court even while applying the law laid down in the case of Bhagwan Rama Shinde (supra) and it is not that in each and every case that the appellant is entitled to bail irrespective of the merits of the case. 11. Now turning to the facts of the present case, for the incident of 20th March 2006, the FIR was registered on 30th March 2006. The applicant’s wife died after expiry of two months and ten days from the date of the incident. Prima facie, there is merit in the submission of the learned counsel for the applicant that there is no proper application of mind by the learned Trial Judge to the facts of the case as is evidenced by the appreciation of the evidence of PW-2 Pandurang Bapurao Potule by the learned Judge. These are the factors which are very relevant for considering the prayer for bail. As stated earlier, it is unlikely that the appeal will be heard in near future considering the large pendency of very old appeals in this Court. 12. In the circumstances, a case is made out ((-10-)) for enlarging the applicant on bail and the application is disposed of by passing following order :- A) The applicant shall be enlarged on the same bail on which he was enlarged during pendency of trial subject to filing fresh bail bonds within a period of four weeks from today; B) The order granting bail will be acted upon only after the applicant deposits the fine amount; C) The bail is granted subject to condition that the applicant will report to Trimbakeshwar Police Station once a month till disposal of the appeal and will keep informed the concerned Officer of the said Police Station of his correct address and contact number. (A.S.OKA, J.)