1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.1688 OF 2010. IN CRIMINAL APPEAL NO.178 OF 2010. 1. Abdul Rauf s/o Abdul Samad, age 26 years, occu. Business, r/o Khasbag, Beed, Taluka and District Beed. 2. Shamim w/o Abdul Samad, age 45 years, occu. Household, r/o Khasbag, Beed, Taluka, and District Beed. ... APPLICANTS. Versus The State of Maharashtra. ... RESPONDENT. ... Shri N.S. Ghanekar, Advocate for applicants. Shri V.D. Godbharle, A.P.P. for respondent. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. RESERVED ON: 24th June, 2010. PRONOUNCED ON: 29th June, 2010. PER COURT: 1. The applicants herein were tried in Sessions Case No.124 of 2009 for offences punishable under Sections 498A, 302 r.w. 34 of I.P.C. before the Addl. Session Judge-1, Beed and by judgment and order dated 2 17th April, 2010, they are convicted for the offence punishable under Section 498A r.w. 34 of I.P.C. and sentenced to suffer R.I. for one year each and to pay fine of Rs.500/- each, in default of payment of fine, to suffer R.I. for one year each. They are also convicted for the offence punishable under Section 302 r.w. 34 of I.P.C. and sentenced to suffer imprisonment for life ad to pay fine of Rs.1000/- each, in default of payment of fine, to suffer R.I. for one year each. They have preferred appeal challenging the said judgment and order passed by the Additional Sessions Judge-1, Beed. The appeal has been admitted by this Court on 4th May, 2010. 2. This application has been filed for suspension of the sentence pending the Criminal Appeal before this Court and further to release the applicants on bail. 3. The learned Counsel for the applicants vehemently submitted that the dying declarations on which reliance is placed by the trial Court are not truthful. It is further submitted that the case papers in respect of treatment given to deceased 3 Arshiya in Civil Hospital, Beed shows that she was not giving the history properly at the time of her admission in the hospital. She was not fit to give any statement and, therefore, it is improbable that she would give the history properly to the Police at the time of her admission in the hospital or even during treatment. It is further argued that Arshiya gave statement after arrival of her father. Therefore, the possibility of tutoring cannot be ruled out. It is further submitted that the case papers no where states that Arshiya was in conscious state of mind or she was not in a position to give statement. It was mentioned that she was not giving history properly, which means that though she was conscious, she was unable to state properly. It is further submitted that there is no evidence about the ill-treatment and the trial Court has failed to appreciate the evidence on record. It is further submitted that the trial Court failed to scrutinize the evidence of the relative witnesses cautiously and further failed to appreciate that there is no corroboration between the witnesses. The learned Counsel invited our attention to the grounds taken in the appeal memo in support of his application for 4 suspension of the sentence and releasing the applicants on bail. It is further submitted that one of the co-accused has been acquitted by the trial Court on the same set of facts and evidence and, therefore, the present applicants also deserves to be acquitted and therefore, they are entitled for bail during pendency of the appeal. 4. On the other hand, the learned A.P.P. invited our attention to the evidence brought on record by the prosecution. It is submitted that both the dying declarations are truthful. The doctor has made endorsements on the said dying declarations that Arshiya was in fit condition to give statement. He further submitted that so far as ill-treatment is concerned, the prosecution has proved by bringing evidence on record that ill-treatment was meted out to the deceased Arshiya. The learned A.P.P. further submitted that not only that there are two dying declarations but, there is medical evidence and also report of the Chemical Analyzer, which corroborates the evidence brought on record by the prosecution. Therefore, the learned A.P.P. would submit that the application for suspension of sentence and bail may 5 be rejected. 5. We have heard learned Counsel appearing for the applicants as well as the learned A.P.P. for State at length. We have perused the record and proceedings and also the judgment of the trial Court and we are of the considered opinion that the application for suspension of sentence / bail deserves to be rejected for the following reasons: It is not in dispute that the marriage of the applicant no.1 with deceased Arshiya was solemnized on 30th May, 2007. The incident took place on 7th August, 2007. The incident took place on 7th August, 2009 i.e. within two and half years from the date of marriage. Arshiya sustained 94% burns. Dr. Upendra Devidas Kulkarni, who performed post-mortem on the dead body of the deceased, noticed following injuries: (1) Head, neck, face : 09% (2) Anterior trunk : 18% (3) Posterior trunk : 18% (4) Right upper extremity : 09% (5) Left upper extremity : 09% (6) Right lower extremity : 15% 6 (7) Left lower extremity : 15% (8) Perinium : 01% --- 94% 6. The incident had taken place within seven years from the date of marriage, the deceased sustained 94% burn injuries and it is an admitted position that the incident took place in the house of the accused. Secondly, the evidence of P.W.3 Abdul Hamid Abdul Gani (Exh.30), who is father of the deceased Arshiya, is on record. He stated that Arshiya was treated well for a period of 5-6 months after marriage and thereafter she was complaining that her husband and mother-in-law were torturing her for money. He further told that accused Abdul Rauf used to insist her to bring Rs.50,000/- as he wanted to start business of clothes. According to him, he himself and his brother—in-law Abdul Majid went to accused Abdul Rauf. His brother-in-law Abdul Javed was also with him. He further told that accused Shamim and accused Rauf were at home. He gave them money and requested not to give trouble to his daughter, but torturing was continued. It has also come in his evidence that accused Abdul Rauf started construction of house and he insisted Arshiya to bring Rs.30,000/- 7 for construction of the house. According to him, even after payment of Rs.50,000/- the accused were insisting his daughter to bring Rs.30,000/- for construction of house and were ill-treating her on that count. It has also come in his cross- examination that he used to tell his daughter to ignore minor things and to go back for cohabitation whenever she used to make complaint. Thirdly, the statement of Arshiya was recorded by Police Head Constable Shri Sutar in the Civil Hospital, Beed while she was undergoing medical treatment and the dying declaration was recorded by the Special Judicial Magistrate Shri Ahmad Mainuddin Deshmukh. Both the dying declarations are consistent. Fourthly, there are endorsements on both the dying declarations that the victim was in a fit condition to give such dying declarations. Therefore, the contention of the Counsel for the applicants that it was highly improbable that she might have given in her statement the details in the manner in which the incident is narrated in the dying declaration. The statement at Exh.40 gives details as to how the incident occurred and from the said narration it seems that husband and mother-in-law of deceased i.e. applicants - accused 8 Nos.1 and 2 were insisting the deceased to bring Rs. 30,000/- from her parents for construction of the house and when the deceased told that her father had already Rs.50,000/- and he was unable to pay any more, the accused Shamim went inside the house and brought can of kerosene and then poured the kerosene on her person. Accused Najmunissa caught hold both hands of deceased and her husband Abdul Rauf set her ablaze with the help of matchstick. Another dying declaration which is at Exh.36, recorded by P.W.5 Ahmad Mainuddin Deshmukh, Special Judicial Magistrate is also consistent with the dying declaration at Exh.40. Fifthly, though it is contended by the Counsel for the applicants – appellants that when Arshiya was brought to the hospital, she was not able to give history properly, it has come in the evidence of P.W.1 Suresh Sutar, Head Constable who recorded the statement of Arshiya first in time that he approached the Medical Officer at 8.20 a.m., then at 9.30 a.m. and then at 11.30 a.m. He admitted that on first two occasions doctor told him that Arshiya was not in a position to give statement. This fact is corroborated even from medical case papers. The trial Court has recorded that had it been a fact that 9 the police wanted to record statement of Arshiya as per the say of her father, there was no reason for them to wait till Arshiya was in a position to give statement. The trial Court has further recorded that merely because some medicines were given in the morning to Arshiya, which may result drowsiness to some extent, it cannot be said that Arshiya was not in a position to give statement. The trial Court has further recorded that even in statement under Section 313 of Cr.P.C. Accused No.1 Abdul Rauf in his written statement admitted that Arshiya’s statement was recorded. Sixthly, the trial Court had come to the conclusion that prosecution has brought on record other circumstances from which there seems to be link between the incident and at least two accused persons i.e. Abdul Rauf and Shamim Abdul Samad. Prosecution has examined P.W.2 Abdul Kalim Abdul Samad at Exh.26. He is a panch witness of panchaama Exh.27 whereby article 4 the shirt and article 5 pant of accused Abdul Rauf were seized. It has come in the evidence of P.W.8 Shankar Vinayak Chate, the P.S.I. who investigated the crime that the C.A. Report in respect of articles which were sent for examination was received, kerosene residues were 10 found on plastic can as well as the curtain which was burnt to some extent. There is corroboration that kerosene was used at the time of incident. The traces of kerosene were found on the clothes of the accused Shamim and Abdul Rauf. Panchanama of place of incident also supports the fact that the incident occurred at the house of accused Abdul Rauf. The trial Court has also commented on the conduct of the accused persons that they were not explaining as to what had happened on that day. They neither denied their presence at the house nor they specifically stated that they were not present at the time of incident. The deceased Arshiya, in her both statements has categorically stated that accused persons left her burning and went away. It is an admitted fact on record that accused Abdul Rauf and accused Shamim were residing together with Arshiya. Therefore, it was necessary for the accused persons at least to give some possible explanation as to what had happened at the time of incident. Though the Counsel for the applicants – appellants has argued that one of the accused namely Najmunissa Begam was acquitted and, therefore, the applicants deserve to 11 be acquitted and during pendency of appeal, they are entitled to for suspension of sentence and bail, his argument is required to be rejected in the light of the discussion by the trial Court in paragraph 75 to 78. The benefit of doubt has been given to the acquitted accused. Therefore, for all these reasons, we do not think that this is a fit case in which sentence should be suspended and applicants can be enlarged on bail during pendency of the appeal. Therefore, application is rejected. It is needless to mention that the observations made in this order are made only to decide the present application. [ S.S. SHINDE ] [ S.B. DESHMUKH ] JUDGE JUDGE Kadam/*