1` IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Misc. Criminal Application No. 168/2008 in Criminal Appeal No.23/2008 Sau Manda @ Kamla Raghoji Waghade vs. State of Maharashtra. ------------------------------------------------------------------------------------------------------------------ Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders. ----------------------------------------------------------------------------------------------------------------- Shri A.K.Neware, Advocate for the appellant/applicant. Shri Ahirkar, A.P.P. for the respondent. CORAM : A.P.LAVANDE & A.B.CHAUDHARI, JJ DATE : 24.03.2008 Heard Mr. A.K.Neware, learned counsel for the applicant and Mr. Ahirkar, learned A.P.P. for respondent. 2. By the Judgment and order dated 15.11.2007 passed in Sessions Trial No. 41/2007 by the 4th Ad hoc Additional Sessions Judge, Amravati the applicant/appellant who has been convicted and sentenced to suffer imprisonment for life and to pay a fine of Rs.500/- and in default to suffer further rigorous imprisonment for three months seeks suspension of substantive sentence and bail. 3. The trial court held the applicant – accused guilty for committing murder of her daughter-in-law Varsha who was married to her son Purushottam. It is the case of the prosecution that the applicant used to quarrel with the deceased by consuming liquor and she did not like deceased Varsha and was insisting that her son Purushottam should leave Varsha and perform marriage with another girl. Deceased Varsha and her husband were residing separately. 2` On 28.10.2006 at about 9.00 p.m. the applicant came to the house where deceased was residing and told her son to leave the deceased and perform marriage with another girl. The applicant was annoyed and she threw the burning lamp on the deceased due to which the deceased caught fire and was burnt. The deceased was taken to the hospital by her husband where her dying declaration was recorded on the same night by Rajkumar Sadashiv Kshirsagar the Special Executive Magistrate. In the said dying declaration deceased Varsha implicated the applicant as a person who threw burning lamp on her and caused burn injuries to her. 4. Deceased Varsha suffered 80% burn injuries and expired on 31.10.2006 in the hospital. 5. The trial Court upon appreciation of the evidence led by the prosecution and the defence witness viz. Purushottam the husband of the deceased held that the prosecution had proved the offence of murder beyond reasonable doubt against the applicant. 6. Mr. Neware, learned counsel for the applicant submitted that the dying declaration does not inspire confidence and the trial Court has rejected the evidence of the husband of the deceased without any cogent reason. According to Mr. Neware, the trial Court ought to have accepted the evidence of Purushottam which discloses that deceased Varsha committed suicide. He further submitted that the offence punishable under Section 302 of the Indian Penal Code is not made out and even if the prosecution case is 3` accepted in its entirety at the most the offence punishable under Section 304-A of the Indian Penal Code is made out against the accused. He further submitted that the applicant is a lady aged about 67 years and she was on bail pending the trial and she did not misuse the liberty granted to her. Moreover, the appeal is not likely to be taken up for final hearing for couple of years and, therefore, this is a fit case in which substantive sentence imposed on the applicant deserves to be suspended and the applicant released on bail. 7. Per contra, Mr. Ahirkar, supported the impugned Judgment and order and submitted that no case has been made out by the applicant for suspension of sentence and grant of bail. 8. In so far as the dying declaration recorded by the Special Executive Magistrate is concerned, we find that there is absolutely no reason to disbelieve the dying declaration recorded by the Executive Magistrate. In our opinion, the trial Court has rightly rejected the evidence of Purushottam, the son of the applicant suggesting the theory of suicide by deceased Varsha. However, the fact remains that before the applicant threw burning kerosene lamp on deceased Varsha there was a quarrel, and thereafter she threw burning lamp on the deceased. The act of the applicant cannot be said to be premeditated. Although we are unable to accept the submission of Mr. Neware that at the most the offence punishable under Section 304 A of the Indian Penal Code is made out against the accused, prima facie we are of the opinion that the case is made out under Section 304 (I) and 4` not under Section 302 of the Indian Penal Code. Moreover, the applicant is a lady aged about 67 years which fact is not disputed by the prosecution. In addition, the applicant was on bail pending the trial and she did not misuse liberty granted to her. Although this fact by itself is not sufficient to grant bail to the applicant, considering the facts and circumstances of the case, we are of the considered opinion that this is a fit case in which the substantive sentence of life imprisonment imposed on the applicant deserves to be suspended and the applicant released on bail pending hearing and final disposal of the appeal more particularly having regard to the fact that the appeal is not likely to be taken up for hearing for couple of years. 9. In view of the above, we pass the following order. i) Pending hearing and final disposal of the Criminal Appeal No. 23/08 the applicant is ordered to be released on bail upon executing bail bond in the sum of Rs. 10,000/- with one surety in the like amount to the satisfaction of the trial Judge. ii) The applicant shall not leave the jurisdiction of this Bench without prior permission of this court. iii) The applicant shall deposit the fine amount in that court, if not already deposited, before executing the bail bond. Judge Judge patle 5`