AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.446 OF 2010 IN CRIMINAL APPEAL NO.1061 OF 2009 Sanjay Sakharam Ahire. ... Applicant Vs. The State of Maharashtra. ... Respondent Mr. N.V. Pradhan with Ms. S.D. Khot with Ms. Ameeta Kuttikrishnan for the applicant. Ms. P.H. Kantharia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 7TH APRIL, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 13TH APRIL, 2010. P.C. :- (Smt. Ranjana Desai, J.) 1. The applicant is convicted for offences punishable under Sections 498-A and 302 of the Indian Penal Code AJN 2 (for short, “the IPC”) and is, inter alia, sentenced to suffer imprisonment for life. The appeal filed by the applicant is admitted by this court. In this application, the applicant has prayed for bail. 2. We have heard Mr. Pradhan, learned counsel appearing for the applicant and Ms. Kantharia, learned A.P.P. appearing for the State. 3. Mr. Pradhan, counsel for the applicant submitted that the prosecution has suppressed material facts from the court, which the defence had to bring on record. Counsel submitted that according to the prosecution, the applicant poured kerosene on the deceased at about 4.30 p.m. and set her on fire. The applicant took her to PW-4 Dr. Vaidya's hospital. Looking to her serious condition, the police called DW-3 Subhash Bhate, the Special Executive Magistrate (for short, “the SEM”) to record her dying declaration. DW-2 Dr. Gulecha examined her and certified that she was fit to make a statement. The SEM then AJN 3 recorded her dying declaration which is at Ex-81. The deceased stated that when she was preparing tea, the gas exploded and in that explosion, she was burnt. Counsel submitted that none of the prosecution witnesses deposed about it. Even the police officer PW-6 PSI Pardeshi did not disclose this fact, but when confronted with it in cross- examination, he admitted that the SEM had recorded the dying declaration. Counsel submitted that DW-2 Dr. Gulecha has corroborated the SEM's version that he had recorded a dying declaration. Counsel pointed out that this dying declaration is recorded at 7.00 p.m. and, therefore, it is first in point of time. 4. Counsel further pointed out that DW-1 Abhimanyu Ahire, the husband of the applicant's patient was present in the clinic of the applicant situate on the ground floor of his residential premises. He stated in his evidence that the applicant was at the relevant time attending to his patients in the clinic. He was sitting on the bench in front of the applicant's cabin. He heard the deceased shouting. AJN 4 He saw the deceased coming down from the stairs in burning condition. He called the applicant. According to this witness, they tried to extinguish the fire. The deceased stated that she was burnt due to gas explosion. Thereafter, the applicant took her to the hospital. Counsel submitted that the prosecution is guilty of suppressing the genesis of its case. This casts a shadow of doubt on the prosecution case. 5. Counsel pointed out that the alleged dying declaration recorded by PW-6 PSI Pardeshi is a tutored dying declaration. It is recorded after the relatives of the deceased came on the scene. PW-4 Dr. Vaidya has admitted that 20 to 25 relatives of the deceased had came to the hospital and they were talking to her and since they were not moving out, he had to take police help. He has admitted that it is the parents and relatives of the deceased who insisted on recording her dying declaration again. Counsel submitted that therefore the version of the deceased that the applicant poured AJN 5 kerosene on her and burnt her is suspect. Counsel submitted that no independent witnesses have been examined by the prosecution. 6. Counsel relied on the judgment of the Supreme Court in Samadhan Koli v. State of Maharashtra, AIR 2009 SC 1059, where the Supreme Court was considering a situation where in the dying declaration recorded by the SEM, the deceased had stated that she received burn injuries by reason of an accident. The prosecution suppressed the said dying declaration. The Supreme Court held that the prosecution must be fair to the accused as fairness in investigation as also in trial is a human right of an accused. The Supreme Court further observed that the Sessions Judge as well as the High Court committed a serious illegality in refusing to consider this question in its proper perspective. Counsel submitted that this judgment is clearly applicable to the present case. Counsel submitted that this is a fit case where the applicant should be released on bail. AJN 6 7. Ms. Kantharia, learned A.P.P. has seriously opposed the grant of bail. 8. Before going to the oral evidence of witnesses, we must refer to the spot panchnama. The defence of the applicant is that the deceased was burnt due to explosion of gas while she was working in the kitchen. How true is this defence can be ascertained from the spot panchnama (Ex-54). Spot panchnama indicates that the incident took place in the veranda in front of the kitchen and not in the kitchen. Articles like match stick box and half burnt match sticks were found lying in the veranda. There was a smell of kerosene. C.A. report (Ex-83) makes it clear that kerosene residue was detected on partly burnt sari of the deceased. If the gas stove had exploded where did the kerosene come from? If the incident occurred in the kitchen, then how did half burnt match sticks and match stick box were lying in the veranda? Where was the exploded gas stove? These are AJN 7 inconvenient questions which the defence has prima facie not been able to answer. 9. The spot panchnama lends support to the dying declaration (Ex-53) recorded by PW-6 PSI Pardeshi at 1.10 a.m. in which the deceased has stated that there was a quarrel between her and the applicant over the engagement ceremony of her sister. The applicant poured kerosene on her and set her ablaze in the veranda in front of the kitchen situated on the first floor. PW-4 Dr. Vaidya has stated that when this dying declaration was recorded the deceased was in a fit condition. The version given in Ex-53 is supported by PW-2 Latabai Sonawane, the aunt of the deceased who has stated that the applicant poured kerosene on the deceased and set her on fire, he took her to the hospital and threatened her that she must disclose to everybody that she was burnt due to gas explosion. PW-3 Sudam father of the deceased has also corroborated this version. AJN 8 10. It is true that the second dying declaration which is corroborated by oral dying declarations made by the deceased to her relatives was recorded after her relatives came on the scene. But, because of that, its' veracity cannot be doubted. It cannot be forgotten that the deceased was severely burnt and it is the applicant who took her to the hospital. Considering the prima facie palpably false defence, the possibility of threats being given by the applicant cannot be ruled out. Pertinently, the applicant has not received any burn injuries. Therefore, prima facie his case that he tried to extinguish the fire appears to be false. It is true that the prosecution ought to have disclosed Ex-81 which is the dying declaration recorded by the SEM. But even if that dying declaration is accepted as true, the case of the prosecution that it was given under pressure and threat of the applicant cannot be ruled out because till her relatives came, the deceased was emotionally vulnerable and under the complete control of the applicant. If her relatives insisted that her fresh dying declaration be AJN 9 recorded exception cannot be taken to that request. 11. Judgment of the Supreme Court in Samadhan Koli, has no application to this case. In this case, it is not just the dying declaration, but the scene of offence which proves the defence version and completely disproves the prosecution case. Such were not the facts before the Supreme Court. This is a case where, in our prima facie opinion, the saying “men may lie but the circumstances do not lie” is aptly applicable. What is the effect of alleged suppression of material by the prosecution could be examined at the stage of final hearing of the appeal, but for considering whether bail should be granted or not the above glaring circumstances are sufficient and they persuade us to reject the prayer for bail. No capital can be made of the fact that no independent witness was examined by the prosecution. Independent witnesses are neighbours of the applicant who is a doctor. It is common experience that such witnesses refuse to enter witness box and if they enter the witness box they turn hostile. It AJN 10 is not the law that no reliance can be placed on interested witnesses. Evidence of the interested witnesses appears to us to be of good quality and reliable. 12. In the circumstances, the application is rejected. We, however, make it clear that observations made by us in this order are prima facie observations. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]