1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. CRIMINAL APPLICATION NO. 262/09 IN CRIMINAL APPEAL NO. 511 OF 2009 Vinayak Trimbakrao Wakode & others .vs. State of Maharashtra ___________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions and Court's or Judge's orders. Registrars orders. CORAM : A.P. LAVANDE & P.B. VARALE, JJ. DATED : DECEMBER 16, 2009. Heard Mr. S.V. Manohar, learned Counsel for the applicants/appellants and Mr. T.A. Mirza, learned Additional Public Prosecutor for the respondent. 2] By the present application, the applicants are seeking suspension of sentence and bail. The applicants (original accused) were charged for committing the offences under Section 302 of Indian Penal Code as well as under Sections 147, 148, 324 read with Section 149 of Indian Penal Code. 3] The case of the prosecution unfolded through the trial is that the informant Suresh Wakode and the accused persons were on inimical terms on a land dispute. On the day of the incident, i.e. on 21.2.2003 informant Suresh had been to a temple with his hand- 2 cart for doing his daily business. It was informed to him by his son Kranti that the accused persons had entered in his plot. He immediately rushed to the plot and found that the accused persons were present in the plot and informed him that they have succeeded in the case instituted by them. The accused persons, namely, Pankaj, Dheeraj, Manoj and Pushpa were present on the spot and the informant Suresh asked the accused persons to show the documents. In the meantime, accused Vinayak came from behind and mounted a stick blow on his waist. The other accused persons who were also armed with stick and axe started beating Suresh. Suresh shouted for help and his wife came to the spot. The accused Vinayak asked the other accused to catch hold of his wife and thereafter accused Vinayak poured kerosene on the person of wife of informant Suresh and asked Pushpa (wife of accused Vinayak) to lit the matchstick and set her on fire. The accused Pushpabai set wife of informant Suresh on fire. Thereafter the accused persons left the spot and ran away. The police came to the spot. The evidence was collected by the Investigating Officer and on appreciation of the evidence, the learned trial Judge in Sessions Trial No. 104/2003 convicted the present applicants/ appellants nos. 1 & 4, i.e. Vinayakrao & Pushpa under Section 302 read with Section 34 of the Indian Penal Code and sentenced them to suffer imprisonment for life and to pay a fine of Rs.1000/- and in default, to suffer R.I. for six months and convicted all the applicants under Sections 147, 148, 149 & 324 of Indian Penal Code 3 sentencing them to suffer R.I. for two years and to pay a fine of Rs. 2000/- and in default, R.I. for six months. 4] Mr. S.V. Manohar, learned Counsel for the applicants, submitted that because of the land dispute the applicants/original accused are falsely involved in the case. He further submitted that there is vast variance in the testimony of the witnesses. He further submitted that though there is dying declaration on the record brought by the prosecution, the dying declaration is neither trustworthy nor inspires confidence so as to connect the accused persons with the commission of offence. Mr. Manohar further submitted that most of the witnesses are the relatives and as such, they are bound to support the case of the informant. He further submitted that the so-called independent eye-witness is a chance eye-witness and it is difficult to believe his version. Mr. Manohar submitted that the applicants/appellants were on bail during the course of trial before the learned Sessions Judge and during the pendency of the trial, they have not misused the liberty granted to them. 5] Per contra, Mr. T.A. Mirza, the learned Additional Public Prosecutor for the respondent, submitted that there is strong evidence on record to connect the accused/applicants with the commission of crime and submitted that no case is made out by the applicants either for suspension of sentence and for grant of bail. 4 6] We have gone through the record. The perusal of record shows that the PW.1 Suresh is the informant. It is also disclosed from the record that the First Information Report was lodged immediately. Though it is true that there is some variance in the report lodged by PW.1 Suresh and his testimony but as it is well-settled that First Information Report is not an encyclopedia of events. The oral testimony of the witness Suresh, who is an injured witness and the medical evidence of the injuries caused to PW.1 Suresh clearly gives us the details of the incident. PW.1 Suresh in his ocular testimony deposed that there was a dispute between the accused persons and him over land. He also gives details of the presence of the accused persons, weapons possessed by them and the overt act of all the accused persons. The applicants/ appellants Vinayakrao and Pushpa by pouring kerosene on the person of Nalini, the wife of Suresh and setting her on fire committed her murder. Nalini, the wife of Suresh, was admitted in the hospital and her dying declaration was recorded. PW.4 Rajabhau Joshi who recorded the dying declaration proved the dying declaration. Rajabhau Joshi in his testimony deposed that he obtained the opinion from the doctor and after ascertaining that the victim was in a fit condition to make statement, Rajabhau recorded her dying declaration. It is also deposed by Rajabhau that after recording the statement, he obtained the certificate of the doctor to the effect that Nalini was conscious. Though the witness was subjected to cross-examination, nothing tangible was brought on 5 record to discredit his testimony. The evidence of Rajabhau is cogent and reliable. PW.3 Dr. Umale who issued the certificate after examining Suresh was also examined by the prosecution and the injury certificate was proved. Dr. Kumudini gives the details of the injuries sustained by Suresh. 7] Mr. S.V. Manohar, the learned Counsel for the applicants, strongly contended that PW.2 Brahmanand Chawre is a chance witness and he is not from the village where the incident took place. It is submitted by Mr. Manohar that in view of these facts, it is difficult to believe the version of PW.2 Brahmanand Chawre. We have gone through the testimony of Brahmanand Chawre. We find that he has deposed that on the day of the incident, he had a party meeting in the village where the incident took place. He deposed that he was working as a social worker and he had been to village Rewasa with one of his party workers. He further deposed that on the way he had seen the incident. He had also identified the accused persons and the weapons. Nothing is brought on record to show that this witness had any inimical terms with accused. We find that the testimony of Brahmanand Chawre is reliable. Though Mr. Manohar submitted that there are certain omissions vis-a-vis the statements of the witnesses, we find that these omissions are not of such a nature to discredit the testimony of the witnesses. 6 8] It is a well-settled principle that the considerations for release of the applicants on bail during trial and post conviction are different. From the perusal of record, we find that there is a prima facie case against the applicants. The oral testimony about the involvement of the applicants in the commission of crime, the overt act and the enmity between the parties are the important circumstances relied by the prosecution. Prima facie, we find that there is sufficient material against the applicants. It is also not in dispute that in the incident, Nalini, the wife of informant was set on fire by the accused nos. 1 & 4 and PW.1 Suresh informant was subjected to assault with the weapons such as axe and sticks. In view of the above mentioned facts, we are not in a position to accept the contention of Mr. Manohar that the applicants/ appellants were on bail during the pendency of the trial and they have not misused the bail and as such, their application deserves to be allowed. In our opinion, this is not a fit case to use our discretion in favour of the applicants. 9] In the result, the Criminal Application is rejected. JUDGE JUDGE. J.