1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application No. 2798/2009 in Criminal Appeal No.81/2009 Vanita Vilas Shegokar Vs. State of Maharashtra. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. CORAM : A.P. LAVANDE & PRASANNA B.VARALE, JJ. Date of reserving the Order : 7/11/2009 Date of pronouncing the order : 11/11/2009. Heard Mr. S.V. Sirpurkar, learned counsel for the applicant and Mr. T.A. Mirza, learned APP for the respondent. By this application, the applicant who has been convicted for offence punishable under Section 302 of the Indian Penal Code seeks suspension of sentence and bail. The applicant and four others were prosecuted for offences punishable under Sections 498-A and 302 of Indian Penal Code read with Section 34 of the Indian Penal Code for subjecting deceased Rekha, wife of Raju Shegokar to cruelty and harassment after marriage and for committing murder of Rekha by setting her ablaze by pouring kerosene on her person. In Sessions Case No. 17/2002 the prosecution examined ten witnesses. The 2 defence examined two witnesses. Learned Sessions Judge, Khamgaon by judgment and order dated 30th December, 2008 convicted the appellant (original accused no.1) for the offence punishable under Section 302 of the Indian Penal Code and acquitted her for the offence punishable under Section 498-A of the Indian Penal Code and other accused were acquitted for both the offences. Learned Sessions Judge relied upon dying declaration (Ex. 62) in which deceased Rekha had stated that it was the applicant who had set her ablaze by pouring kerosene on 8.5.2005 in the afternoon. Mr. Sirpurkar, learned counsel for the applicant submitted that the evidence led by the prosecution clearly suggests that the deceased was taken from Lasura Umra in the afternoon by bullock-cart first to Balapur and thereafter to Akola by bullock-cart and as such the dying declaration could not have been recorded by 5.45 p.m. as alleged by the prosecution. He, therefore, submitted that no reliance can be placed on the dying declaration which is the only evidence against the applicant. He further pointed out that evidence of D.W.1 Sk. Rafik Sk. Karim clearly suggests that on the day of the incident the applicant was working in his brick kiln between 10.00 a. m. to 5.00 p.m. and this fact clearly proves the defence of alibi taken by the applicant. 3 He further submitted that it is difficult to believe that the dying declaration which is running into about 20 lines could have been recorded within 15 minutes as mentioned in the dying declaration. He further submitted that the applicant is lady with two minor children and, therefore, this is a fit case for suspending substantive sentence imposed on the applicant and granting her bail. In support of his submission, Mr. Sirpurkar relied upon the judgment of the Apex Court in Pritpal Singhal Vs. State of Delhi (1999) 1 SCC 169. Per contra, Mr. Mirza, learned APP submitted that deceased was not taken in the bullock cart from Lasura Umra to Akola but she was taken in bullock cart for some distance and thereafter she was taken in the bus and it is improbable that deceased who was with severe burn injuries would have been taken in bullock cart covering distance about 40-50 Kms Lasura Umra to Akola. He further submitted that dying declaration proved through the evidence of PW 7 Dr. Sunita Meshram, PW 8 Noor Khan, Executive Magistrate. He further submitted that there is absolutely no reason for disbelieving the evidence of PW 7 Dr. Sunita Meshram and PW 8 Noor Khan who are respectable and independent witnesses and as such, the defence further does not deserve any credence. 4 We have carefully considered the submissions made by learned counsel for the applicant and learned APP for the respondent and perused the record. PW 2 Uttam Ambhore was examined by the prosecution to prove inquest panchanama (Ex. 47). In cross-examination initially he stated that he had gone to hospital at 4.00 p. m. to 5.00 p.m. Immediately thereafter the witnesses stated that they had gone to the hospital at 6.00 p.m. to 7.00 p.m. He further stated that the deceased was taken to the hospital in bullock cart. PW 7 Dr. Sunita Meshram stated that before recording the dying declaration she certified that the patient was conscious and fit for recording the statement. The evidence of Dr. Sunita PW 7 stands corroborated by PW 8 Noor Mohd the Executive Magistrate, who recorded dying declaration between 5.45 p.m. to 6.00 p.m. on 8.5.2009. In the cross-examination of these two witnesses nothing tangible has been brought on record to discredit their testimonies. We, therefore, find extremely difficult to place reliance upon the stray statement made by PW 2 Uttam Ambohore that the deceased was taken in the bullock cart from Lasura Umra to Akola to the hospital, which appears to be improbable. Moreover PW 2 Uttam Ambhore himself initially has stated that they reached at hospital at 4.00 to 5.00 p.m. 5 We have absolutely no reason to disbelieve the evidence of PW 7 Dr. Sunita Meshram and PW 8 Noor Khan, who are independent witnesses and have no axe to grind against the applicant. We are also unable to place reliance on the testimony of the defence witnesses in support of plea of alibi taken by the applicant. The dying declaration which prima facie deserves credence clearly implicates the applicant in the crime and there is absolutely no reason suggested as to why the deceased, who implicated only the applicant although five accused were charged for commission of offence of murder. We are, therefore, unable to accept the submission of Mr. Sirpurkar that the dying declaration does not deserve any credence. Insofar as the judgment in the case of Pritpal Singha (supra) relied upon by Mr. Sirpurkar is concerned, the factual matrix in the said case is entirely different. The accused was about 70 years was in custody for 7 ½ years. In this factual back ground, the Apex Court granted bail to the appellant in the said case. In the present case, the applicant has been convicted for the offence under Section 302 of the Indian Penal Code. The Apex Court in Vijay Kumar Vs. Narendra :2002 (9) SCC 364, Ramji Prasad Vs. Rattan Kumar Jaiswal 2000 (9) SCC 366 has held that in cases involving conviction under Section 302 of the Indian Penal Code it is only in exceptional cases that the benefit of suspension of sentence can be granted. 6 Having regard to the nature of the offence proved against the applicant which is serious one, we are unable to accept the submission of Mr. Sirpurkar that this is a fit case for suspension of sentenced and grant of bail. Mere fact that the applicant is lady and has two minor children, by itself, is no ground to suspend substantive sentence of imprisonment and to grant bail. We, therefore, find no merit in the present application. For the aforesaid reasons, the application is dismissed. Needless to mention that the observations made in this order are for the limited purpose of deciding the application. JUDGE JUDGE Ambulkar.