1 crap2053.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2053 OF 2011 IN CRIMINAL APPEAL NO. 243 OF 2011 Sanjay s/o Ananda Mokale & ors. ...Applicants/Appellants VERSUS The State of Maharashtra ...Respondent ..... Shri S.G.Ladda, advocate for applicants/appellants Shri B.V.Wagh, A.P.P. for respondent/State ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 9 th June, 2011 PER COURT : 1 Heard Shri S.G.Ladda, advocate for applicants/appellants and Shri B.V.Wagh, A.P.P. for respondent/State. 2 This is an application preferred by the applicants (original accused) seeking bail, pending hearing and final disposal of Criminal Appeal No. 243 of 2011, suspending substantive sentences inflicted 2 crap2053.11 upon them by way of judgment and order, dated 4.5.2011, rendered by the learned Additional Sessions Judge-5, Aurangabad, in Sessions Case No. 29 of 2008, thereby convicting the applicants for the offence punishable under Section 304-B r/w 34 of the Indian Penal Code and sentencing them to suffer R.I. for 7 years and to pay fine of Rs.3,000/- each, in default to suffer R.I. for 4 months by each; and also convicting them for the offence punishable under Section 498-A r/w 34 of the Indian Penal Code and sentencing them to suffer R.I. for 3 years and to pay fine of Rs.2,000/- each, in default to suffer R.I. for 4 months by each, and also directing that the afore said substantive sentences to run concurrently. 3 The applicants have questioned the conviction and sentences inflicted upon them by filing Criminal Appeal No. 243 of 2011 and same has been already admitted by me by passing order therein separately on 6.5.2011. 4 Learned counsel for the applicants submitted that there is no likelihood that the appeal filed by the applicants would be taken up for final hearing in near future, and the substantive sentences inflicted upon the applicants are for 7 years and 3 years, respectively, which are short term sentences and placed reliance upon the judicial pronouncement in the case of Kiran Kumar vs 3 crap2053.11 State of M.P., reported at 2001 AIR SCW 5130 and further submitted that there is no exceptional reason shown by the prosecution for not suspending the substantive sentences in the present case. It is also canvassed by the learned counsel for the applicants that the applicants were on bail during the pendency of trial and there is no grievance of the respondent that the applicants misused the said liberty. Moreover, it is also submitted that there are no criminal antecedents of the applicants. Learned counsel for the applicants further canvassed that applicant no.3 Ratan is the son-in- law of applicant no.2, who is resident of Paithan, which is about 75 kms. away from Phulambri, District Aurangabad, and his involvement in the alleged offence is suspicious. 5 Learned counsel for the applicants further canvassed that the alleged demand of Rs.10,000/- does not come under the purview of dowry, but it was construed as hand loan. It is also canvassed that the ingredients of Section 304-B of the Indian Penal Code are not present in the instant case and there is no material on record to show that soon before the death of victim Durgabai, she was subjected to cruelty or harassment by her husband or relatives and further there is no material on record to establish that such harassment or cruelty was in connection with the demand of dowry. 4 crap2053.11 6 It is also canvassed by the learned counsel for the applicants that even present case is not covered by both the Explanations under Section 498-A of the Indian Penal Code. Accordingly, it is urged by the learned counsel for the applicants that applicant no.4 Indubai and applicant no. 5 Jijabai are the women, who are in jail since last more than one month and at least their application for bail be considered sympathetically. 7 Learned A.P.P. countered the said argument and opposed the said application vehemently and submitted that the charges levelled against the applicants are in respect of dowry death, which is anti social offence and the prosecution has examined as many as 9 witnesses to substantiate the charges levelled against the applicants and the learned Trial Court has appreciated the evidence in proper perspective and rightly convicted the applicants and sentenced them as afore stated. 8 It is also canvassed by the learned A.P.P. that the death of victim Durgabai occurred within the span of 3 years from her marriage with accused no.1 Sanjay, and therefore, learned Trial Judge has rightly drawn presumption under Section 113A of the Indian Evidence Act in respect of offence under Section 498-A of the Indian Penal Code and presumption under Section 113B of the 5 crap2053.11 Indian Evidence Act in respect of offence under Section 304-B of the Indian Penal Code. It is also canvassed by learned counsel for the applicants that deceased Durgabai sustained 100 per cent burn injuries and PW7 Dr. Anand in his evidence disclosed his opinion that burn injuries may sustain in suicidal incident. According to the learned A.P.P., PW1 to PW4 are the witnesses who are relatives of victim Durgabai, who have categorically stated in respect of unlawful demand made by the applicants to Durgabai and illtreatment to which she was subjected by the applicants. Learned A.P.P. also canvassed that there was marriage of Shital i.e. niece of accused no. 1 on 30.4.2007, for which unlawful demand of Rs.10,000/- was made by the applicants as dowry amount and due to nonfulfilment thereof, deceased Durgabai was subjected to illtreatment, which was the instance of cruelty soon before the incident i.e. the death of victim Durgabai, which occurred on 1.5.2007 by committing suicide by her by setting herself ablazed. Hence, learned A.P.P. submitted that present case is squarely covered by Section 304-B of the Indian Penal Code and therefore, learned A.P.P. supported the said impugned judgment and order. Accordingly, learned A.P.P. urged that present application bears no substance and same is devoid of any merits, and therefore, same be dismissed. 9 I have perused the impugned judgment and order, dated 6 crap2053.11 4.5.2011, rendered by the learned Additional Sessions Judge-5, Aurangabad, in Sessions Case No. 29 of 2008, as well as perused the R. and P. with the assistance of the learned counsel for the parties. 10 On perusal of the oral, documentary as well as medical evidence on record and after considering the rival submissions advanced by the learned counsel for the parties, admittedly the death of victim Durgabai took place within the span of 3 years from her marriage with accused no. 1 Sanjay at her matrimonial home. Moreover, the evidence of PW7 Dr. Anand, who performed the postmortem on the dead body of victim Durgabai discloses that the said victim sustained 100 per cent burn injuries and the cause of death of the deceased is due to shock due to burns. Moreover, it is material to note that when specific question was put to the said witness whether victim sustained suicidal or homicidal injuries, the said witness stated that as per his opinion the burn injuries were sustained in a suicidal incident in the instant case, and apparently, said aspect is incriminating against the applicants herein. 11 Although, as laid down in the case of Kiran Kumar (supra), the substantive sentences inflicted upon the applicants herein can be construed as short term sentences, there appears to 7 crap2053.11 be exceptional reason for not suspending the substantive sentences inflicted upon them, since the charges levelled against them, which are in respect of the offences punishable under Sections 498-A and 304-B of the Indian Penal Code, and which are proved before the competent court, are anti social offences, and the ratio laid down in the case of Kiran Kumar (supra) cannot be of any aid and assistance to the applicants herein. 12 Having the comprehensive view of the matter, I am not inclined to accept the submissions advanced by the learned counsel for the applicants and the applicants do not deserve to be enlarged on bail during the pendency of appeal. However, simultaneously, it cannot be ignored that applicant no. 4 Indubai, who is about 58 years and applicant no.5 Jijabai, who is reportedly having three children, are the women, and therefore, their application only can be considered sympathetically in the interest of justice, as an exception. 13 In the result, present application No. 2053 of 2011 stands dismissed in respect of applicant no. 1 Sanjay s/o Ananda Mokale, applicant no.2 Ananda s/o Bhikaji Mokale and applicant no.3 Ratan Kaduba Sonawane. However, present application is partly allowed to the extent of applicant no.4 Indubai w/o Ananda Mokale and applicant no.5 Jijabai w/o Ratan Sonawane and it is directed that the 8 crap2053.11 said applicant nos. 4 and 5 be released on bail in the sum of Rs. 10,000/- each with one surety in the like amount by each of them, pending hearing and final disposal of Criminal Appeal No. 243 of 2011 suspending the substantive sentences inflicted upon them only and present application stands disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2053.11