1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3244 OF 2009 IN CRIMINAL APPEAL NO. 447 OF 2009 Kasturabai w/o Narayan Solanke ...Applicant (Orig. appellant/ accused no.4) VERSUS The State of Maharashtra ...Respondent (Orig.Respondent/ complainant) ..... Shri S.S.Choudhary, advocate for the applicant Shri K.B.Choudhary, APP for the respondent ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 7th October, 2009 ORAL ORDER : (Per Shrihari P.Davare, J.) 1 Perused. Heard learned respective counsel for the 2 parties. 2 The applicant/original accused no.4 has preferred the present application requesting to suspend the substantive sentence and to release her on bail during the pendency of the appeal, which has been filed challenging the judgment and order rendered by the learned Additional Sessions Judge, Majalgaon in Sessions Case No. 38 of 2008 on 31.8.2009 convicting the applicant/accused no.4 for the offence punishable under Section 302 of the Indian Penal Code and sentencing her to suffer life imprisonment. 3 In brief, the prosecution case is summarized that the marriage of accused no.1 Shamsundar and the victim, namely, Hema took place about 2 years back. Accused no.2 Narayan is the father-in-law of victim and accused no.3 Deelip is brother-in-law of deceased Hema and applicant/accused no.4 is the mother-in-law of the victim Hema. By the afore said judgment and order dated 31.8.2009 in Sessions Case No. 38 of 2008 accused nos. 1 to 3 came to be acquitted of the charges levelled against them; whereas applicant/accused no.4 came to be convicted and sentenced as afore said. It is also alleged that for initial period of six months from the marriage, the accused persons treated 3 deceased Hema well, but thereafter they started illtreating her physically and mentally. It is also alleged that demand of an amount of Rs. 50,000/- was made to the victim which was to be broughtby her from her parents for construction of the house. Even she was not provided food. Moreover, she was blessed with one son, but even milk was not provided to said son. 4 It is further alleged that on 6.5.2008 at about 5.30 a.m. the accused persons poured kerosene on the person of Hema and ablazed her. Accordingly she sustained 96 per cent burns and succumbed to the burn injuries and expired at about 4.30 p.m. on the same day i.e. 6.5.2008. The first information report Exh.36 came to be lodged by the mother of the victim, namely PW1- Mangalabai on 7.5.2008. The investigation was carried out. The accused persons were arrested and they were charged and tried in Sessions Case No. 38 of 2008 and accused nos. 1 to 3 were acquitted and applicant/accused no.4 was convicted as afore said. 5 Learned counsel for the applicant submitted that there are in all 5 dying declarations, out of which, 3 are oral dying declarations and 2 are written dying declarations. Learned counsel for the applicant further submitted that the first dying 4 declaration is oral which was made before DW1-Dr.Gajanan at 6.00 a.m. which discloses that deceased committed suicide and second dying declaration is also oral which was made by victim Hema before DW2-Dr.Avinash at 8.45 a.m. On 6.5.2008 and it refers to accidental death. Learned counsel for the applicant pointed out that it is pertinent to note that next i.e. third dying declaration is written dying declaration which was recorded at 9.30 a.m. on 6.5.2008 at Exh.73 by DW3- Head Constable Bahirwal which reflects that the victim succumbed to accidental death. Learned counsel for the applicant further pointed out that the fourth dying declaration is oral dying declaration, which was made before PW1-Mangalabai i.e. the complainant recorded at 12.00 noon on 6.5.29008, involves the accused and this is the first dying declaration wherein accused came to be involved and according to the learned counsel for the applicant since the said oral dying declaration was made before her mother viz. Mangalabai, the accused persons came to be implicated in the present case falsely. 6 Learned counsel for the applicant also pointed out that the firth dying declaration is written dying declaration, which was recorded by PW2-Ganpat Edake, Special Executive Magistrate at Exh.39 at 12.30 p.m. On 6.5.2008, and it involves the accused 5 persons. 7 Considering the afore said dying declarations, learned counsel for the applicant submitted that there is variance and inconsistencies in the said dying declarations and, therefore, same cannot be construed as truthful and reliable to connect the applicant/accused with the alleged crime. According to the learned counsel for the applicant, the fitness of the victim at the time of giving said dying declarations is also doubtful. 8 Besides that, learned counsel for the applicant submitted that the applicant is a old woman of 60 years and, therefore also urged that her case be considered sympathetically for grant of bail. 9 Shri K.B.Choudhary, learned A.P.P. opposed the present application vehemently and submitted that the victim was not free when the initial two dying declarations were made before DW1-Dr. Gajanan and DW2-Dr.Avinash, as well as at the time when the written dying declaration was recorded by Head Constable Bahirwal and, therefore, the said dying declarations refer to suicidal death/accidental death. Learned A.P.P. pointed out that the victim became free when her mother PW1- 6 Mangalabai came into picture before whom she gave oral dying declaration at 12.00 noon and involved the accused persons in the occurrence of the incident. Learned A.P.P. Further submitted that thereafter the Special Executive Magistrate PW2-Ganpat Edake recorded the written dying declaration of the victim at Exh. 39, wherein she involved the accused. Hence, learned A.P.P. submitted that the oral dying declaration made by victim before her mother PW1-Mangalabai and the written dying declaration recorded by the Special Executive Magistrate PW2-Ganpat Edake are required to be believed to connect the applicant/accused with the crime. Learned A.P.P. further submitted that the learned Trial Judge has rightly observed and concluded and hence, the applicant/accused is guilty for the crime and hence, the applicant is not entitled to be enlarged on bail. 10 We have perused the record and proceedings which was made available for our inspection and perusal and we have also perused the oral and documentary evidence as well as medical evidence. We have also considered the submissions advanced by the learned counsel for the parties anxiously. We have also perused the statement of the applicant/accused recorded under Section 313 of the Code of Criminal Procedure, as well as considered the reasoning and conclusions drawn by the 7 learned Trial Judge in the impugned judgment dated 31.8.2009. 11 Apparently, the prosecution has examined in as much as 8 witnesses to substantiate the charges levelled against the accused persons; whereas the defence has examined 3 defence witnesses. 12 It is seen from the evidence of PW3-Dr.Vashistha Jadhav, wherein he stated that it is possible that the patient was not in a position to speak since 4 to 5 hours earlier to 4.30 p.m. Keeping in mind the said statement of PW3-Dr.Vashistha Jadhav and coming to the above referred dying declarations, it is apparent that the first 3 dying declarations in point of time refer to suicidal/accidental death of the victim; whereas later 2 dying declarations i.e. oral dying declaration made before PW1- Mangalabai and written dying declaration recorded by PW2- Ganpat Edake involved the accused persons in the alleged crime. Hence, it is apparent that the above referred dying declarations are inconsistent with with each other. 13 On perusal of postmortem notes Exh.44, it is seen that the victim sustained 96 per cent burns and the cause of death is given as shock due to extensive superficial deep burns. We also 8 noticed that the applicant sustained 21 per cent burns and injury certificate dated 6.5.2008 issued by the Medical Officer, Rural Hospital, Majalgaon supports the said factum. 14 Apart from merits of the matter, we find that the applicant is an old aged woman of 60 years, who also apparently sustained 21 per cent burns during the occurrence of the incident and, therefore, we are of the considered view that this is a fit case wherein the applicant is entitled to be enlarged on bail. 15 Hence, having the comprehensive view of the matter and totality of the evidence, this is a fit case to enlarge the applicant on bail and present application deserves to be allowed. 16 Accordingly, Criminal Application is allowed. The applicant/original accused no.4 be enlarged on bail in the sum of Rs.15,000/- with one surety in the like amount to be furnished before the learned Trial Judge. The applicant to report before the learned Trial Judge once in a month for three months from today. Application stands disposed of accordingly. R. and P. be sent back to the trial Court forthwith. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) dbm/crap3244.09