1 crap2749.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2749 OF 2011 IN CRIMINAL APPEAL NO. 328 OF 2011 Ganpat s/o Dnyanoba Garje and ors. ...Applicants Appellants (original accused nos. 1 and 2) VERSUS The State of Maharashtra ...Respondent ..... Shri S.S.Jadhavar, advocate for applicants/appellant nos. 1 and 2 Smt. Y.M.Kshirsagar, A.P.P. for respondent/State. ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 20 th July, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the applicant/appellant nos. 1 and 2 (original accused nos. 1 and 2), seeking bail, pending hearing and final disposal of Criminal Appeal No. 328 of 2011, 2 crap2749.11 suspending the substantive sentences inflicted upon them. 3 It appears that applicant nos. 1 and 2 faced the trial along with Smt. Sulabai w/o Ganpat Garje in Sessions Case No. 89 of 2009 for the offences punishable under Section 498-A, 306, 323, 504 r/w 34 of the Indian Penal Code. Applicant nos. 1 and 2 i.e. original accused nos. 1 and 2 were convicted for the offence punishable under Section 306 r/w 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each, in default of payment of fine to suffer further simple imprisonment for six months; and they were also convicted for the offence punishable under Section 498-A r/w 34 of the Indian Penal Code and were sentenced to suffer rigorous imprisonment for three years and to pay fine of Rs.500/- each, in default of payment of fine to suffer further simple imprisonment for three months, by way of judgment and order, dated 18.6.2011, rendered by the learned Additional Sessions Judge, Beed. Applicant nos. 1 and 2 have challenged the said conviction and sentence by filing Criminal Appeal No. 328 of 2011 and same has been admitted by me on 1.7.2011 by passing the order separately therein. 4 I have perused the impugned judgment and order, dated 18.6.2011 and also perused the R. and P. with the assistance of the 3 crap2749.11 learned counsel for the parties. 5 Shri Jadhavar, learned counsel for the applicants canvassed that the prosecution case revolves around the only evidence of PW4 i.e. Popat Tandale, father of the victim namely Alka and the dying declaration of the victim (Exh.22) and not beyond that. It is also canvassed that the only allegation in the deposition of PW4 Popat is that deceased Alka wanted to reside separately along with her husband from her in-laws and same cannot be construed as the root cause of the allegations against the applicants, since it is the common ground in most of the families for the quarrels and there is nothing exceptional therein and applicant nos. 1 and 2 cannot be connected with the alleged crime under Section 306 of the Indian Penal Code on the said ground. Moreover, it is also canvassed by the learned counsel for the applicants that it has come in cross- examination of PW4 Popat that deceased Alka was of angry nature, and therefore, it is submitted that there was every possibility that victim Alka committed suicide due to her hot tampered nature. 6 As regards the dying declaration Exh.22, learned counsel for the applicants submitted that the doctor, who gave endorsement on the dying declaration, has not been examined before the court by the prosecution, which is the lacuna in the said dying declaration, 4 crap2749.11 and therefore, such dying declaration cannot be construed as basis for conviction against the applicants. Accordingly, learned counsel for the applicants urged that the applicants are entitled to be enlarged on bail during the pendency of the appeal, since the evidence adduced/produced by the prosecution is short of connecting them with the alleged crime. 7 Shri Jadhavar, learned counsel submits that the said substantive sentence inflicted upon the applicants is short term sentence, relying upon the judicial pronouncement in the case of Kiran Kumar vs State of M.P., reported at 2001 AIR SCW 5130. 8 Learned A.P.P. countered the arguments advanced by the learned counsel for the applicants and opposed the present application vehemently and submitted that the prosecution has examined as many as six witnesses to substantiate the charges levelled against the accused persons and PW1 Gorakshnath, Special Executive Magistrate, who recorded the dying declaration Exh.22, has proved the contents of the said dying declaration. Moreover, the contents of the said dying declaration Exh. 22 implicitly connect the applicants with the crime. It is also canvassed by learned Additional Public Prosecutor that specific role has been attributed towards the applicants in the said dying declaration. Moreover, learned A.P.P. 5 crap2749.11 also pointed out that PW4 Popat, who is the father of victim Alka, has also categorically deposed about the illtreatment and harassment meted out to victim Alka. According to learned A.P.P., the prosecution witnesses have proved and established the complicity and involvement of the applicants in the crime. Moreover, victim Alka was burnt to the extent of 100 per cent as per the evidence of PW2 Dr. Sonawane. Accordingly, learned A.P.P. urged that present application bears no substance and same is devoid of any merits and same be rejected. 9 After considering the ocular, documentary and medical evidence adduced/produced by the prosecution on record and considering the rival submissions advanced by the learned counsel for the parties, and more particularly, considering the dying declaration Exh.22, it appears that there are specific allegations against applicant no.1, who is the father in law of victim and applicant no.2, who is the brother in law of victim Alka, and it also reflects from the dying declaration that they used to assault her and she was fed up with the said assault and harassment, and therefore, she poured kerosene on her person and set ablazed herself. The contents of the said dying declaration have been proved by PW1 Gorakshnath i.e. Special Executive Magistrate In his testimony. Moreover, deposition of PW4 Popat, father of deceased Alka, also 6 crap2749.11 spells out the harassment meted out to deceased Alka by the applicants. 10 In the circumstances, having the comprehensive view of the matter, I am of the opinion that prima facie there is incriminating evidence against applicant nos. 1 and 2 herein and considering the complicity of the applicants in the offence, present case is distinguishable from the case of Kiran Kumar (cited supra), and hence, the ratio laid down therein cannot be of any help and assistance to the case of the applicants herein, and therefore, I am not inclined to allow the present application and to enlarge the applicants on bail during the pendency of appeal. 11 In the result, present application, which is sans merits, stands dismissed. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap2749.11