1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2262 OF 2010 in CRIMINAL APPEAL NO.243 OF 2010 Walmik s/o Laxman Raipalle and another. ... APPLICANTS. VERSUS The State of Maharashtra. ... RESPONDENT. ... Shri R.D. Biradar, Advocate for applicants. Shri V.D. Godbharle, A.P.P. for State. ... CORAM : S.B. DESHMUKH AND S.S. SHINDE, JJ. DATE : 29th JULY, 2010. PER COURT: We heard learned Counsel Mr.Biradar for the applicants and the learned A.P.P. Mr. Godbharle for the respondent State. 2 The applicants had been charged and tried for the offences punishable under Sections 498-A and 302 r.w. 34 of I.P.C. in Sessions Case No.59 of 2 2009. The trial Court, after recording the evidence and hearing the learned Counsel for the parties, convicted both the applicants for the offence punishable under Section 302 r.w. 34 of I.P.C. and sentenced them to suffer imprisonment for life and to pay a fine of Rs.3000/- each. Default sentence was also imposed by the trial Court. Both the applicants have been acquitted of the offence punishable under Section 498-A of I.P.C. The judgment was delivered by the trial Court on 15th March, 2010. 3 Both the applicants are in appeal before this Court and after hearing the learned Counsel for the parties, the appeal has been admitted. Record and proceedings is available with us. The learned Counsel for the applicants argues that the entire case of the prosecution rests on two written dying declarations (Exh.32 and Exh.37). The dying declaration (Exh.32), in fact, is a statement recorded by the Police Officer, which was treated as dying declaration. The date of 3 occurrence is September 4, 2007 at around 8 p.m. Indisputably, on 5th September, 2007 the deceased Meerabai was rushed to the hospital. She was treated for about five – six days. She died on 10th September, 2007 in the hospital. The dying declaration (Exh.32) was recorded on 5th September, 2007. Another dying declaration (Exh. 37) has also been recorded on the same day i.e. on 5th September, 2007 by the Special Executive Magistrate. The learned Counsel for the applicants submitted that these two dying declarations are inconsistent. The variance pointed out by the learned Counsel is prior to the actual occurrence of the alleged burning of deceased Meerabai. In one dying declaration, according to the learned Counsel for the applicants, the deceased claimed that after about 5 p.m. she had swept the courtyard. Her mother- in-law i.e. applicant No.2 had kept green-gram for drying in the courtyard, which was not properly guarded by the deceased and resultantly, said green-gram was partly eaten by cattle (she 4 buffalo). The applicant No.2 was annoyed and assaulted the deceased Meerabai. So far as the applicant No.1 husband is concerned, he also allegedly beat the deceased with hands. The learned Counsel for the applicants further submitted that the second dying declaration (Exh. 37) gives different version so far as beating before the actual occurrence. There the deceased claims that she was dragged by catching hair. He, therefore, submitted that both the dying declarations are inconsistent and ought not to have been relied by the learned trial Court while recording conviction against the applicants. 4 The learned A.P.P. pointed out these two dying declarations and submitted that first one is the statement recorded by the Police Officer in the hospital itself, which at Exh.32. Another dying declaration at Exh.37 also has been considered by us with the assistance of the learned Counsel. Indisputably, both these dying declarations are recorded in the hospital and the patient was 5 examined by the Medical Officer. We have seen the evidence of Police Officer who recorded the dying declaration (Exh.32) and the evidence of Special Executive Magistrate who recorded the dying declaration (Exh.37). Apart from these two dying declarations, the learned A.P.P. points out the version of Mr. Tanaji, father of the deceased. The prosecution claims that after perceiving the occurrence on 5th September, 2007, P.W.1 Tanaji along with his wife had been to the hospital and deceased Meerabai told him about the occurrence implicating both the applicants. Thus, prosecution relied on the third oral dying declaration in support of its case. 5 We have considered the submissions made on behalf of the parties. The applicant No.1 is husband of the deceased and applicant No.2 is mother-in-law of the deceased Meerabai. Inconsistency in the dying declarations is relevant and important on material particulars. It is a matter of appreciation of evidence of 6 relevant witnesses. Both the applicants indisputably were on bail during the trial. We have noticed from the material brought on record that there was some bickering, may be on trivial issue, between the applicant No.1 husband and deceased Meerabai. We have also noticed that applicant No.2 mother-in-law was around 60 years old. After considering the material brought on record against the applicants and their status, in our view, case for grant of bail can be considered in relation to applicant No.2 Smt. Sojarabai w/o Laxman Raipalle. However, we are not inclined to grant such concession and/or bail to the applicant No.1. In other orders, application of applicant No.1 deserves to be rejected. 6 Criminal Application is partly allowed. Application of applicant No.1 Walmik stands rejected. We direct that the applicant No.2 Smt. Sojarabai w/o Laxman Raipalle be released on bail 7 on her furnishing P.R. bond of Rs.15,000/- with one surety in the like amount. Bail in the trial Court. Criminal application is disposed of, accordingly. (S.S. SHINDE) (S.B. DESHMUKH) Judge Judge. kadam/*