1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2168 OF 2010 IN CRIMINAL APPEAL NO. 212 OF 2010 Kalyan s/o Sahebrao Shinde, age 37 years, occ. Agril., r/o Pachod, Tq. Paithan, District : Aurangabad ...Applicant (original accused) VERSUS The State of Maharashtra, through the Investigating Officer, Pachod Police Station, Tq. Paithan, District Auangabad ...Respondent ..... Shri R.V.Gore, advocate for the applicant Smt. B.R.Khekale, A.P.P. for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9 th July, 2010 2 PER COURT : 1 Heard Shri R.V.Gore, advocate for the applicant and Smt. B.R.Khekale, A.P.P. for respondent. 2 This is an application preferred by the applicant/appellant requesting for his enlargement on bail during the pendency of Criminal Appeal No. 212 of 2010 challenging the conviction and sentence inflicted upon him by way of the judgment and order dated 12.5.2010, rendered by the learned Additional Sessions Judge-5, Aurangabad in Sessions Case No. 84 of 2009, convicting him under Section 307 of the Indian Penal Code and sentencing him to suffer R.I. for three years and to pay fine of Rs.1,000/-, in default to suffer R.I. for one month; and convicting him under Section 504 of the Indian Penal Code and sentencing him to pay fine of Rs. 500/-, in default to suffer S.I. for fifteen days; and also convicting him under Section 506 of the Indian Penal Code and sentencing him to suffer R.I. for six months and to pay fine of Rs. 250/-, in default to suffer S.I. for seven days. All the substantive sentences were directed to run 3 concurrently. The applicant prays for suspension of said substantive sentences during pendency of the said appeal. 3 Learned counsel for the applicant canvassed that the appellant faced the trial in Sessions Case No. 84 of 2009 and prosecution examined in as much as four witnesses, and the said witnesses are, complainant PW1-Meerabai i.e. wife of the accused, PW2-Mukta Shrikrushna Bhanuse i.e. sister of Meerabai, PW3- Appasaheb s/o Narayanrao Shelke - neighbour of complainant Meerabai, and PW4PSI Madhukar s/o Yadhavrao Zote – investigating officer. 4 On the afore said background, learned counsel for the applicant submitted that the applicant is in custody since last about 20 months and he has undergone almost about 50% of the sentence inflicted upon him. Learned counsel for the applicant further canvassed that there are no criminal antecedents of the applicant. According to the learned counsel for the applicant, the marriage between Meerabai and the applicant took place ten years back and one daughter and one son have been born out of the said wedlock. Besides, learned counsel for the applicant also submitted that during 4 the pendency of the trial, since the victim and the applicant are the wife and the husband of each other, a settlement/compromise took place between them and the said compromise deed was tendered before the trial Court along with the application on 8.2.2010 under Exh.25. However, since the trial Court had no authority to compound the said offence under Section 307 of the Indian Penal Code and since trial was part heard, learned Trial Judge rejected the said application on 16.2.2010. 5 Moreover, learned counsel for the applicant submitted that the sentence awarded to the applicant is a short term sentence of three years, and therefore, he deserves to be enlarged on bail during the pendency of the appeal. 6 Learned counsel for the applicant also relied upon the observations made in the case of Kiran Kumar vs State of M.P., reported at 2000 (Supp.1) JT 208. “ (3) This Court has held in Bhagwanram Shinde v. State of AIR Gujarat, 1999 (4) SCC 42 ] : that when a person is convicted and sentenced to a short term imprisonment the 5 normal rule is that when his appeal is pending the sentence should be suspended and rejection is only by way of exception and be put forward for such rejection. In such case also every endeavour should be made to have the appeal posted for early hearing and disposal. If the short term sentence is allowed to run out during the pendency of the appeal the appeal itself will become, for all practical purposes, infructuous so far as the appellant is concenred. It does not mean that the appellate Court should suspend the sentence, if its consequence would be danger to the society or any other similar difficulties. “ 7 Learned counsel for the applicant/appellant also relied upon the observations made by Hon’ble Supreme Court in the case of Mulukuri Siva Prasad vs State of A.P., reported at 2000 (2) JT 38. “ (2) The appellant was convicted under Section 307 Indian Penal Code and sentenced to seven years’ imprisonment by the trial court by its judgment dated 31/03/1994 for assaulting the complainant who is his real mother. The appellate court, however, by its judgment dated 9/6/1997 altered the conviction to Section 324 Indian Penal Code and sentenced him to undergo three years rigorous imprisonment. The revision filed thereafter in the High Court was partly allowed and 6 the sentence was reduced to two years. It is in these circumstances that the present appeal has been filed in this court. (3) During the pendency of the appeal in this court, an application for compounding the offence was filed on which we passed the following order on 30/08/1999 : “ Both the complainant and the petitioner shall appear before the Assistant Sessions Judge, Gudiwada (Andhra Pradesh). He shall verify the contents of the application for compounding of offence filed before this Court. A copy of the application shall be sent to Assistant Sessions Judge, Gudiwada (AP). He shall find out whether the mother is living with the petitioner and the petitioner is looking after the complainant well or not.” (4) The Assistant S.Judge, Gudiwada, Krishna District, Andhra Pradesh, has sent his report in which the compromise has been verified and it is specifically mentioned that the complainant who is the mother of the petitioner was being maintained and treated well by the petitioner. The report further indicates that the mother did not complain of any illtreatment. 7 (5) Having regard to the facts stated above, the application for compounding the offence is allowed. The appellant shall not be taken into custody as he shall be treated to have been acquitted. We, however, observe that he will have to continue to maintain his mother well throughout her life and serve her as an obedient son. The appeal is disposed of. “ 8 Learned Additional Public Prosecutor opposed the present application and submitted that there is evidence of injured victim herself, who survived of the attack of burning at the hands of the applicant, as well as the testimony of PW3-Appasaheb Shelke is also incriminating against the applicant, since he has stated that although the applicant was present in the house after setting ablaze the complainant on fire, he did not try to extinguish the fire of complainant-victim Meerabai, which itself discloses the intention of the applicant to kill his wife. Learned Additional Public Prosecutor also submitted that the applicant was not granted bail during the pendency of trial, and therefore, also he is not entitled to be enlarged on bail during the pendency of appeal. In the circumstances, learned Additional Public Prosecutor submitted that present application deserves to be rejected, since it bears no substance. 8 9 On perusal of the impugned judgment and order, as well as the record and proceedings and after considering the rival submissions advanced by both the respective learned counsel for the parties, as well as after having considered the observations made by Hon’ble Supreme Court in the afore said Rulings, I am inclined to accept the submissions advanced by the learned counsel for the applicant, since, short term sentence of three years has been awarded to the applicant by the learned trial Judge and since the applicant and the victim are husband and wife of each other who had already compromised the matter and tendered the said deed of compromise before the trial Court along with the application on 8.2.2010 under Exh. 25, but since the trial Court had no authority to compound the said offence under Section 307 of the Indian Penal Code, the learned Trial Judge rejected the said application on 16.2.2010. The said aspect of compromise between the victim and the applicant herein cannot be ignored. Besides that, ten years have been passed for the marriage of the applicant and Meerabai and one daughter and one son have been born out of the said wedlock, as contended by the learned counsel for the applicant, as well as there are no criminal antecedents of the applicant, as submitted by the learned counsel for the applicant. 9 10 In the circumstances, present application deserves to be allowed and the applicant is required to be enlarged on bail during the pendency of appeal, but by imposing certain conditions upon him, as mentioned below. 11 In the result, present application is allowed and 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 on the following conditions :- (1) The applicant shall give attendance before Incharge of Pachod police station,Taluka Paithan, District Aurangabad, once in three months, till disposal of Criminal Appeal No. 212 of 2010. (2) The applicant shall not tamper with the evidence and/or influence upon the witnesses directly or indirectly. (3) The applicant shall not misuse the liberty granted to him. (4) If the victim i.e. wife of the applicant lodges any complaint against the applicant, in respect of harassment/threats, it will entail in cancellation of the bail granted to the applicant. 10 12 The R. and Ps. be sent back to the concerned trial Court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2168.10