1 Cri. Application No.635/2011 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD Criminal Application No.635 Of 2011 In Criminal Appeal No.66 OF 2011 1) Dadasaheb s/o Babasaheb Pawar, Age 29 years, Occupation : Agriculture, R/o. Tembhi, Taluka Vaijapur, District Aurangabad. 2) Kadubai w/o Babasaheb Pawar, Age 60 years, Occupation : Household, R/o. Tembhi, Taluka Vaijapur, District Aurangabad. ... Applicants. Versus * The State of Maharashtra Through Police Station, Veergaon, Taluka Vaijapur, District Aurangabad. ... Respondent. -------- Smt. Madhaveshwari D. Thube-Mhase, Advocate for applicants. Shri. D.V. Tele, Additional Public Prosecutor for respondent. -------- CORAM: NARESH H PATIL & A.V. POTDAR, JJ. DATE: 14th MARCH 2011 2 Cri. Application No.635/2011 PER COURT : 1) Heard. 2) The applicants were convicted for an offence punishable under section 302 read with section 34 of the Indian Penal Code and were sentenced to imprisonment for life with fine by judgment and order dated 19-1-2011 passed by the Additional Sessions Judge-3, Aurangabad, in Sessions Case No.247 of 2009. 3) The applicants filed present appeal against the said judgment and order of conviction and sentence. The appeal was admitted by this Court on 14th February 2011. The applicants filed this application for bail. Record and proceedings was called and after receipt of the record the application is listed for hearing today. 4) The prosecution case, briefly stated is that, on 18-4-2009 deceased Sangita suffered burn injuries which were, according to the medical officer, 100 percent burns. The deceased was married to applicant No.1 Dadasaheb 3 Cri. Application No.635/2011 Babasaheb Pawar prior to about 3 years of the incident. She was blessed with a child, who is stated to be about 2 years now. It is alleged that, the husband of deceased Sangita, Dadasaheb, used to drink liquor and quarrel with the deceased. On the day of incident, the applicants Nos. 1 and 2, husband and mother-in-law of the deceased respectively, were present in the house. Applicant No.2 poured kerosene on the person of the deceased and applicant No.1 husband of the deceased, set her ablaze with the help of a match stick. Soon thereafter she was shifted to hospital. 5) Dying declaration was recorded at 1.00 a.m on 19-4-2009 by Police Sub Inspector, PW 3 Rashid Nawab Khan. In the dying declaration, the deceased involved both the applicants for commission of the crime. 6) The learned counsel appearing for the applicants submitted that, extract of MLC Register No. 1582 (Exhibit 44) was placed on record, according to which, the deceased stated that on the day of incident there was quarrel with her mother-in-law due to which she 4 Cri. Application No.635/2011 poured kerosene on her person and set her on fire. The counsel submits that the Defence witness No.1 – Saraswati, who was one of the persons who took deceased to hospital, has supported the defence version. According to the learned counsel, considering the medical evidence that deceased suffered 100% burns she must not have been in a position to make any statement. Both hands of Sangita were burnt totally which creates doubt that her thumb impression, as shown to be occurring on the dying declaration, must have been obtained by the police officer concerned. 7) The learned counsel further submitted in respect of the case of applicant No.2, mother-in-law that, she is a lady of about 60 years old. She is now in jail along with the child of deceased Sangita. She was on bail during trial. Considering the facts of the case, by putting certain conditions, the case of the applicant No.2 for grant of bail be considered. 8) The learned Additional Public Prosecutor submitted that, after recording evidence and considering 5 Cri. Application No.635/2011 the facts that the dying declaration of the deceased was on record, the trial Court had convicted and sentenced the applicants. At this stage re-appreciation of the evidence would not be permissible, according to the APP. It was submitted that, there is nothing on record to disbelieve the version of deceased Sangita. The applicants have committed a serious crime, therefore, the bail application be rejected. 9) We have perused the original record and proceedings for the purposes of consideration of this bail application. We have perused the dying declaration, the extract of MLC register and relevant documents for the said purpose. 10) The trial Court had convicted and sentenced the applicants after recording the evidence. Certainly at this stage re-appreciation of evidence and scanning the same minutely may not be necessary. But still we had looked into the same and the basic features of the evidence which was brought on record by the prosecution. In the dying declaration the deceased Sangita involved 6 Cri. Application No.635/2011 both the applicants. Her marriage was hardly 3 year old. She was blessed with a child. The father of Sangita had deposed against the applicants. 11) The defence has tried to bring on record that, the father did not file report to the police promptly after happening of the said incident. The defence has placed reliance on the evidence of Saraswati, who is a neighbour and relative. 12) We have perused Exhibit 51, injury certificate issued by the Medical Officer after examining applicant No.2 Kadubai, who, according to the certificate, suffered four superficial to deep burns. The counsel for the applicants submitted that these burn injuries were caused while applicant No.2 was trying to extinguish fire. 13) We find that applicant No.2 was on bail during trial. She is an old woman of about 60 years. Learned counsel appearing for the applicants submitted that, the child of the deceased Sangita is with applicant No.2 and she is taking care of the child. The counsel submitted that in case applicant No.2 is released on bail she would be in 7 Cri. Application No.635/2011 a better position to take care of the small child. 14) On merits and considering the facts and attending circumstances, we are not inclined to consider the application for bail of applicant No.1 Dadasaheb Babasaheb Pawar. His application stands rejected. 15) Considering the age of applicant No.2 and the submissions advanced in respect of applicant No.2, we are convinced to release applicant No.2 on bail on certain conditions. 16) The applicant No.2 – Kadubai Babasaheb Pawar shall be released on bail on her furnishing personal bond of Rs.20,000/- (Rs. Twenty Thousand only) with one surety in the like amount. The application stands partly allowed. Record and proceedings be sent back forthwith. Sd/- Sd/- (A.V. POTDAR, J.) (NARESH H PATIL, J.) rsl