1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2464 OF 2010 IN CRIMINAL APPEAL NO. 241 OF 2010 Nishad Tanwir Sayyed ...Applicant VERSUS The State of Maharashtra ...Respondent ..... Smt. S.S.Jadhav, advocate for applicant Shri S.D.Kaldate, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 28 th July, 2010 PER COURT : 1 Heard Smt. S.S.Jadhav, advocate for applicant and Shri S.D.Kaldate, A.P.P. for respondent. 2 This is an application preferred by the applicant/appellant (original accused) seeking her enlargement on bail pending hearing and final disposal of Criminal Appeal NO. 241 of 2010 suspending the substantive sentence inflicted upon her by way of judgment and order dated 24.6.2010, rendered by learned Adhoc District Judge and Additional Sessions Judge, Ahmednagar 2 in Sessions Case No. 15 of 2008 convicting her under Section 304-I of the Indian Penal Code and sentencing her to suffer R.I. For ten years and to pay fine of Rs. 1,000/-, in default to suffer R.I. for six months, which is challenged in the afore said Criminal Appeal No. 241 of 2010. 3 I have perused the impugned judgment and order dated 24.6.2010, as well as record and proceedings with the assistance of both the learned counsel for the parties. The applicant/accused herein was charged for the offence punishable under Section 302 of the Indian Penal Code for having committed murder of Shabana by pouring kerosene on her person and by setting her on fire by match stick on 26.7.2007. 4 Learned counsel for the applicant canvassed that the alleged incident occurred at about 11.00 a.m. on 26.7.2007 and victim Shabana sustained burn injuries and thereafter she was admitted to Booth Hospital at about 1.30 p.m. on the same day and history given to the doctor is of accidental burns. The victim Shabana succumbed to the said injuries on 27.7.2007. 5 Smt. S.S.Jadhav, learned counsel for the applicant also submitted that in all three written dying declarations of victim Shabana were recorded and out of the said three dying declarations, first dying declaration was recorded by PW6 Amirkhan Pathan on 26.7.2007 at about 3 11.00 a.m; whereas second dying declaration was recorded by PW3 Bhaskar Bhos on 26.7.2007 at about 8.45 p.m. to 9.00 p.m. and the third dying declaration was recorded by PW8 P.I. Bhimashankar Bharti, investigating officer on 29.7.2007. 6 In the context of afore said three dying declarations, Smt. Jadhav, learned counsel for the applicant invited my attention to the fact that the contents of the afore said three written dying declarations have not been proved before the court and the witnesses who have recorded the afore said three written dying declarations have not testified before the court how the alleged offence took place and who was the offender and the manner in which the incident of alleged offence took place and she relied upon the view taken by the Division Bench of this court in the case of Saheblal s/o Jumassha Sayyad and anr. Vs State of Maharashtra, reported at 2010 ALL MR (Cri) 766, to which Presiding Officer of this Bench was one of the members. 7 Learned counsel for the applicant further canvassed that the applicant was on bail during the pendency of the trial and she has not misused the said liberty and there are no allegations that she committed any breach of the terms and the conditions of the said bail. She also canvassed that the applicant has deposited the fine amount before the trial Court. Accordingly, learned counsel for the 4 applicant urged that the applicant be enlarged on bail during the pendency of the afore said appeal. 8 Shri Kaldate, learned Additional Public Prosecutor opposed the present application vehemently and submitted that the trial Court has placed implicit reliance upon the three written dying declarations, as well as one oral dying declaration made by victim before PW2 Shaikh Mustak Paresab and convicted the applicant and the reasoning adopted for the said conviction is proper and logical and same cannot be faulted with. Learned Additional Public Prosecutor also pointed out that besides three written dying declarations, victim gave oral dying declaration before her brother i.e. PW2 Shaikh Mustak Paresab, which categorically involves the applicant in the alleged crime. 9 As regards the proof of contents of written dying declarations, learned Additional Public Prosecutor submitted that the said aspect can be considered at the time of hearing of the appeal. Accordingly, learned Additional Public Prosecutor supported the impugned judgment and order and submitted that the application for bail preferred by the applicant bears no substance and same deserves to be rejected. 5 10 I have considered the submissions advanced by the learned counsel for the applicant and the learned Additional Public Prosecutor for the respondent, and also gave thoughtful consideration to the view adopted by the Division Bench of this Court (cited supra) and apparently the learned counsel pointed out that the contents of three written dying declarations have not been proved, and hence, the aspect of oral dying declaration can be considered at the time of re-appreciation of evidence at the time of hearing of appeal, and hence, I am of the view that this is a fit case to enlarge the applicant on bail during the pendency of the appeal. It also cannot be overlooked that the applicant was on bail during the pendency of the trial and, as contended by the learned counsel for the appellant, the applicant has not misused the said liberty and there are no allegations in respect of breach of any of the conditions by the applicant herein. In the circumstances, present application deserves to be allowed. 11 In the result, present application is allowed and it is directed that the applicant be released on bail on furnishing surety in the sum of Rs.15,000/- and on executing P.R. Bond in the like amount before the trial Court suspending the 6 substantive sentence inflicted upon the applicant during the pendency of Criminal Appeal No. 241 of 2010, on the condition that the applicant shall report before the trial Court once in quarter till the disposal of the appeal and present application stands disposed of accordingly. R. and Ps. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2464.10