1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 2387 OF 2009 Mahetab s/o Akabar Bidre & anr. ..Applicants VERSUS The State of Maharashtra ..Respondent ..... Smt, S.S.Jadhav, advocate for the applicants Shri B.J.Sonwane, APP for the respondent/State. ..... CORAM : NARESH H. PATIL AND SHRIHARI P.DAVARE, JJ. DATED : 25th August, 2009 ORAL ORDER : (Per Shrihari P. Davare, J.) 1 Perused. Heard learned counsel for the parties. 2 Applicant nos. 1 and 2/original accused nos. 1 and 2 have preferred the present application requesting to suspend the 2 substantive sentences rendered by the Additional Sessions Judge, Nilanga in Sessions Case No. 24 of 2008 dated 8.5.2009 and enlarge them on bail during pendency of the appeal. 3 The applicants were charged under Sections 302 and 452 r/w Section 34 of the Indian Penal Code and were tried and convicted under the said Sections by the learned Additional Sessions Judge,Nilanga in Sessions Case No. 24 of 2008 by the judgment and order dated 8.5.2009 and they were sentenced to suffer imprisonment for life and fine and R.I. For one year and fine, respectively. Being aggrieved and dissatisfied by the said judgment and order, the applicants/accused have preferred appeal before this court and same is pending. 4 The prosecution case, in nutshell, is that accused no.1 is the husband of accused no.2 and they were residing adjacent to the house of deceased Sahera and the relations of accused nos. 1 and 2 on one part and deceased Sahera and her husband on other part were strained because of the quarrel between their children. The alleged incident took place on 17.5.2008 at about 10.15 to 11.00 a.m., wherein accused nos. 1 and 2 came to the house of deceased Sahera and picked up quarrel with her on account of quarrel between their children and accused no.1 3 sprinkled kerosene on her person from the iron small lamp (Chimani) and accused no.2 set her on fire by igniting match stick and thereby the polyester sari worn by Sahera flared and she sustained extensive injuries of about 76 per cent and succumbed to the death on 21.5.2008 5 The learned counsel for the applicants submitted that first dying declaration of the victim was recorded on 17.5.2008 at about 10.15 a.m. to 11.00 a.m. by Head Constable Lahu Kamble and same was treated as the first information report. She also submitted that another dying declaration was recorded by the Special Executive Officer Mr. Gaikwad on 18.5.2008 at 12.00 noon. In the context of both the dying declarations, the learned counsel for the applicants submitted that the peripheries of both the dying declarations differ from each other, since first dying declaration dated 17.5.2008 discloses that accused no.1 sprinkled kerosene from Chimani (lantern) on the person of deceased Sahera and accused no.2 ignited the victim by match stick and thereupon victim shouted and neighbours arrived there and extinguished fire; whereas second dying declaration dated 18.5.2008 recorded by the Special Executive Officer reflects that accused no.1 sprinkled kerosene from Chimani (lantern) from the house of deceased only and accused no.2 ignited victim by match 4 stick and thereupon victim came out of the house shouting and thereafter accused no.1 put plastic chatai on the person of victim and extinguished fire. Therefore, it is submitted that there are differences in contents of both the dying declarations and hence, the said dying declarations cannot be believed. 6 Learned counsel for the applicants further submitted that the first dying declaration bears the signature of the victim as ‘Sahera Bidre’; whereas second dying declaration dated 18.5.2008 discloses signature of victim as ‘Sahera Begum’. In the said context, learned counsel also submitted that in fact the medical evidence discloses that victim was unable to scribe her signature and, therefore, both the dying declarations come under the suspicion of cloud. 7 It is further submitted by the learned counsel for the applicants that victim was educated in Urdu medium and she could sign only in Urdu, but the first dying declaration dated 17.5.2008 bears the signature of victim in Deonagari script; whereas the second dying declaration dated 18.5.2009 discloses the signature of victim in Deonagari script as well as in Urdu script. It is also pointed by the learned counsel for the applicants that the second dying declaration was recorded by the Special 5 Executive Officer Mr. Gaikwad on 18.5.2008, and in fact, he was unauthorised to record the dying declaration on the said date, as his term was already expired and, therefore, it is submitted that the prosecution case comes under the shadow of suspicion and hence, the applicants are entitled to be released on bail. 8 Learned counsel for the applicants also urged that accused no.2 is a woman and, therefore, she is entitled to be released on bail and she be given the benefit thereof. 9 Shri Sonwane, learned A.P.P. Opposed the present application vehemently and submitted that the learned Trial Judge has discussed both the afore said dying declarations and gave reasoning for accepting the same in para no.47 of the judgment and the said reasoning is proper and logical. It is also submitted by learned A.P.P. That the overt act of each of the accused is specified in both the dying declarations, which is consistent and, therefore, same connects the applicant nos. 1 and 2 herein with the crime. It is further submitted that victim has made oral dying declarations before PW4 Mehatab i.e. father of deceased Sahera and PW5 Yousuf Miyan and both the said oral dying declarations are also consistent with the above referred two written dying declarations and same connect the applicants with 6 the guilt. Hence, learned A.P.P. submits that present application bears no substance and same be rejected. 10 We have perused the oral, documentary and medical evidence as well as perused the judgment and order passed by the learned Additional Sessions Judge, Nilanga in Sessions Case No. 24 of 2008 on 8.5.2009 and it is seen that the prosecution has examined in all 15 witnesses to substantiate the charges levelled against the applicants herein. Considering the rival submissions apparently the first dying declaration dated 17.5.2008 was recorded by the Head Constable after the occurrence of the incident and same was treated as first information report, and second dying declaration was recorded on 18.5.2008 in presence of the Special Executive Officer and the overt act of each of the accused is categorically specified in both the said dying declarations i.e. sprinkling of kerosene by applicant/accused no.1 upon the person of deceased and igniting her by a match stick by applicant/accused no.2 and both the written dying declarations are consistent in that respect. Apart from that, the oral dying declarations made by victim Sahera before PW4 Mehatab and PW5 Yousuf Miyan are consistent with the afore said both the written dying declarations dated 17.5.2008 and 18.5.2008, which apparently amounts to incriminating evidence against the 7 applicants herein. 11 Besides, as regards the contention of applicant no.2 that she being woman be given benefit thereof and be released on bail, but considering the role of applicant no.2 in the occurrence of the incident i.e. of igniting the deceased by a match stick which is the vital role, and same cannot be over looked and cannot be ignored, since apparently it is the clinching role in the occurrence of the incident. Moreover, it is also material to note that applicant nos. 1 and 2 were not on bail during pendency of the trial. 12 Accordingly, considering the facts and circumstances, we are of the considered view that there is evidence against the applicants and hence, we are not convinced that this is a fit case to enlarge applicant nos. 1 and 2 on bail. 13 Hence, present Criminal Application stands rejected. R. & P. be sent back to concerned court. (SHRIHARI P. DAVARE, J.) (NARESH H. PATIL, J.) 8 dbm/crap2387.09