- 1 - IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1719/2010 IN CRIMINAL APPEAL NO.182/2010 1] Kondiba s/o Shankar Mange (Mukhede), age 33 yrs., occu.agri., 2] Dhondubai w/o Shankarrao Mange (Mukhede), age 65 yrs., occu.agri., & household, 3] Laxman s/o Vishwanath Dange, age 33 yrs., occu.agri., All r/o Bori (Bk.) Tq.Kandhar Dist.Nanded. ...Applicants.. Versus The State of Maharashtra, through Police Station Officer, of Police Station, Kandhar Tq.Kandhar Dist.Nanded. ...Respondent... ..... - 2 - Shri A.M. Gaikwad , Advocate for applicants. Shri S.D. Kaldate, APP for respondent. ..... CORAM: SHRIHARI P. DAVARE, J. DATE: 16.07.2010 PER COURT: 1] Heard learned counsel for the parties. 2] This is an application preferred by the applicant nos.1 to 3 – appellants (original accused nos.1 to 3) seeking bail during pendency of Criminal Appeal No. 182/2010, which has been filed by them challenging the conviction and sentence rendered by Ad Hoc Additional Sessions Judge, Kandhar in Sessions Case No. 17/2005 on 21.4.2010 convicting the applicant no.1 u/s 498-A r/w 34 of I.P.C. and sentencing him to suffer R.I. for three years and fine of Rs.3,000/- with default condition of non-payment of fine, to suffer R.I. For one month and also convicting him u/s 306 r/w 34 of I.P.C. and directing him to suffer R.I. for 7 years with fine of Rs.5,000/- in default of payment of fine, to suffer R.I. for two months and also convicting him u/s 323 r/w 34 of I.P.C. and sentencing him to suffer R.I. for three months and to pay fine of Rs.1,000/- with default condition of non-payment of fine, to suffer R.I. for 10 days, and also convicting the applicant nos.2 & 3 – accused nos.2 & 3 u/s 498-A r/w 34 of I.P.C. and sentencing them to suffer R.I. for one year - 3 - and to pay fine of Rs.1,000/- each, in default to suffer R.I. For 10 days and also directing them to suffer R.I. for three years and to pay fine of Rs.2,000/- each with default condition of non-payment of fine, to suffer R.I. for 20 days as well as convicting them u/s 323 r/w 34 of I.P.C. and sentencing them to suffer R.I. for three months and to pay fine of Rs.500/- each in default to suffer R.I. for 5 days and it was directed that all the substantive sentences to run concurrently. 3] The learned counsel for the applicants submits that the substantive sentences of the applicant nos.2 & 3 have been already suspended by the learned trial Judge and they have been enlarged on bail by him and the said applicant nos. 2 & 3 seek continuation of their bail in the present application, whereas the applicant no.1 – Kondiba Shankar Mange (Mukhede) is in custody. 4] The learned counsel for the applicants submitted that to substantiate the charges against the applicants, the prosecution has examined inasmuch as 8 witnesses. It is alleged that the incident i.e. commission of suicide by the victim Suman took place on 25.9.2002 i.e. within 5 years from the date of her marriage with the applicant no.1 – Kondiba and, therefore, the trial Court went on the footing of raising presumption against the applicants. It is also canvassed that P.W. 3 Kashinath i.e. father of the victim is the complainant, who lodged the A.D. report on the date of the incident, but FIR was lodged after the delay of one day. The learned counsel for the applicants also pointed out that the prosecution has not examined the investigating officer in the present matter for the reasons best known - 4 - to the prosecution and no explanation has been given in that respect. 5] As regards the testimony of P.W.3 – complainant Kashinath, the learned counsel for the applicants invited my attention to the admissions given by him in the cross examination wherein it is stated that his daughter was issue-less till her death and even after 5 years after marriage, she could not conceive and, therefore, she used to remain depressed. He also stated that his daughter Suman was a patient of fits since prior to her marriage and further stated that a person after having attack of fits is having convulsions and used to dash or rub his legs against anything which came into his contact. He further categorically stated in the cross examination that as his daughter could not conceive till 5 years after the marriage, she committed suicide by hanging herself. Based upon the aforesaid admissions, the learned counsel for the applicants submits that very admissions given by the P.W.3 apparently exonerate the applicants from the alleged offences. 6] The learned counsel for the applicants further submits that the applicants were on bail during pendency of trial and they did not misuse the said liberty. It is also canvassed that the applicants have deposited the fine imposed upon them and they shall abide by the terms and conditions imposed upon them if released on bail. More over, it is also submitted that the applicants have been imposed short term sentence and their appeal has been admitted and hence they need to be enlarged on bail during pendency of the appeal. - 5 - 7] In the said context, the learned counsel for the applicants relied upon the observations in para 3 made by the Hon’ble Supreme Court in the case of Kiran Kumar V/s State of M.P. (2001 AIR SCW 5130), which are to the following effect: “This Court hash held in Bhagwanram Shinde V. State of Gujarat, 1999 (4) SCC 421 ; that when a person is convicted and sentenced to a short term imprisonment the 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 concerned.” 8] The learned A.P.P. opposed the present application vehemently and submitted that the reasoning adopted by the learned trial Judge while convicting and sentencing the applicants is proper and the same can not be faulted with. It is also canvassed by the learned A.P.P. that the applicants have been rightly convicted and sentenced for the offences with which they were charged and accordingly the learned A.P.P. supported the judgment and order rendered by the trial Court convicting and sentencing the applicants and submitted that the present application presented by the applicants bears no substance and the same is - 6 - devoid of merits and the same may be rejected. 9] I have perused the impugned judgment dated 21.4.2010 as well as the record and proceedings with the assistance of the learned counsel for the parties. Apparently, the applicants were on bail during pendency of the trial and they did not misuse the liberty granted to them. More over, the appeal filed by the applicants has been already admitted and sentences inflicted upon the applicants are of short term sentences and the prosecution has not pointed any exceptional circumstances for not granting bail to the applicants during pendency of the appeal. In addition, the learned counsel for the applicants also submitted that the applicants have deposited the fine imposed upon them. 10] In the light of the aforesaid facts, I am inclined to accept the submissions advanced by the learned counsel for the applicants and consequently the applicants deserve to be enlarged on bail during pendency of the appeal. 11] In the result, the present application is allowed and the applicant nos.1 to 3 be released on bail in connection with Crime No.69/2002 registered with Kandhar Police Station Dist.Nanded, on furnishing surety in the sum of Rs.15,000/- each by executing P.R. Bond in the like amount by each of them before the trial Court on the condition that the applicant nos.1 to 3 shall give attendance before the in- charge of Kandhar Police Station Dist.Nanded once in a quarter till disposal of Criminal Appeal No.182/2010. The substantive sentences against the applicant - 7 - nos.1 to 3 shall stand suspended till disposal of Criminal Appeal No.182/2010 filed in this Court by them. Record and proceedings be sent back to the concerned Court. (Shrihari P. Davare, J.) ndk/cr167109