1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD Criminal Application No. 4161 of 2009 In Criminal Appeal No.596 of 1999 Gorakhnath s/o Changdeo Shinde age 26 years, occup.agriculture, r/of Pimperkheda,Taluka Gangapur District Aurangabad. .. applicant/ appellant versus The State of Maharashtra .. Respondent ------ Shri S.G.Ladda, Advocate, with Shri D.S.Manorkar, Advocate for the applicant-appellant.Shri B.V. Wagh, A.P.P. for the Respondent. Coram : P.R.Borkar, J. Date : December 19,2009. P.C. 01. The application is for bail by original accused who is convicted by the learned Additional Sessions Judge-4, Aurangabad, in Sessions Case No. 45 of 2007 decided on 19.11.2009, of the offences punishable under Sections 376 and 506 of Indian Penal Code. For offence under Section 376 of IPC,he is sentenced to suffer rigorous imprisonment for seven 2 years and to pay fine of Rs.2,000/= and for offence under Section 506 of IPC,he is sentenced to suffer rigorous imprisonment for six months and to pay fine of Rs.200/=. 02. Present applicant and other three accused are acquitted of the offences punishable under Sections 498-A and 306 of I.P.C. Three accused, other than present applicant, were husband of the deceased Vanita and her parents-in-law.Present applicant is the elder brother of husband of the deceased who is charged of offences under Sections 376 and 506 of I.P.C. 03. It is the prosecution case that on 9.11.2006 at about 5.00 p.m.,the deceased Vanita was in the house.At that time, the appellant-the elder brother of her husband,came in the house.He went in the room where Vanita was sleeping and committed forcible rape on her.He threatened her not to disclose to any one and went away.Husband of Vanita was not at home.He came at home at about 5.45 p.m. After cooking food, dinner etc.while going to sleep at about 9.00 p.m., Vanita told him about the incident.Husband got enraged against the present applicant and went out.He asked 3 Vanita why she did not tell him about incident at 5.45 p.m. when he had come home. Saying so, he left the room. Thereafter, Vanita closed the door of the room, poured kerosene on her person and set herself on fire. On hearing shouts, husband of Vanita and her parents- in-law rushed to the room and since the door was simply closed without latching and only by some support, they came in the room, extinguished the fire and and admitted Vanita firstly in the hospital of Dr. Bemble.On the next day, Vanita was given discharge from the said hospital and she was then admitted in the Government Medical College Hospital, Aurangabad where she died on 10.11.2006. Evidence against the appellant is mainly by way of two dying declarations which are recorded when Vanita was admitted in the Government Medical College Hospital, Aurangabad. 04. Heard learned counsel Shri S.G.Ladda for the applicant and Shri B.V.Wagh, learned A.P.P. for the Respondent-State. Both have taken me through the judgment of the trial court and the record. 05. It is argued by Advocate Shri Ladda for the applicant that the story of rape was a tutored story 4 and there is no evidence other than two dying declarations to support the said story. On the other hand, according to him, there are certain circumstances which show that no such incident had taken place, but Vanita had committed suicide and there was no rape committed on her. The first circumstance claimed is that defence evidence is led to show that at the relevant time grand mother of the husband of Vanita was present in the house. Secondly, house of Vanita is in their own land where other persons were working nearby the said house and therefore if the incident had really taken place, she would have raised shouts and people would have gathered. It is also pointed out by Advocate Shri Ladda that immediately after receiving burn injuries, Vanita was first admitted by her husband and in-laws in the hospital of Dr. Bemble where she gave history in which it is stated that oil lamp fell on sari on her person and thus she sustained burn injuries. In the hospital of Dr. Bemble, Head Constable Shinde recorded statement of Vanita at Exhibit 50 wherein she has stated that on 9.11.2006 at about 9.00 p.m. there was no electricity in the house. Her husband had gone out for supply of fodder to the cattle. She alone was 5 in the house. She was filling kerosene in the lighted lamp and at that time kerosene accidentally fell on her sari and that is how she was injured. On her shouts, her in-laws came and admitted her in the hospital. So, it was a case of pure accident. 06. Advocate Shri Ladda further submitted that on next day i.e. 10.11.2006 at about 9.00 a.m. Vanita's in-laws took her discharge from Dr.Bemble's hospital and admitted her in the Government Medical College Hospital, Aurangabad, where PSI Shinde recorded statement of Vanita at about 8.20 to 9.00 p.m. which is at Exhibit 40 and for the first time she disclosed that the present applicant-appellant had committed rape on her when she was sweeping inner room. He did so under threats and force. Later on, her husband came home at about 5.45 p.m. and her parents-in-law came home at about 6.00 p.m. She cooked food and then while going for sleep at about 9.00 p.m. she disclosed her husband that present applicant had committed rape on her. Husband asked her why she did not disclose the incident to him immediately when he came home at 5.45 p.m. Vanita disclosed that food was to be taken by all and therefore she did not disclose 6 the incident. Thereafter, husband is said to have told her that he would teach a lesson to the appellant and would kill him and went out of the room. At that time Vanita closed the door of the room, poured kerosene on her person and set herself on fire. Her in-laws on hearing shouts, rushed and extinguished fire and took her to the hospital, as stated earlier. 07. On the same day i.e. after the statement of Vanita was recorded by PSI Shinde, the Executive Magistrate also recorded her statement at midnight which was continued from about 11.00 a.m. to 12.15 on the night between 10th and 11th November 2006. As per the said statement recorded in detail by the Executive Magistrate, at about 5.00 p.m. when Vanita alone was in the house, applicant-appellant raped on her and went away into the land. She told this incident to her husband, after his arrival at home at about 5.45 p.m. Getting enraged, husband told her that he would kill Gorakhnath and went out. At that time Gorakhnath was on the terrace. Vanita felt that there would be violence and quarrel and, therefore, she closed the door of her room from inside and set herself on fire. Vanita further stated that she has 7 complained about the appellant as he committed rape on her and apprehending that if there would be commotion and violence due to the incident of rape, she put herself on fire. 08. Learned Sessions Court believed the two dying declarations and passed the order of conviction against the present appellant. The learned Judge, however, disbelieved the story of Vanita being subjected to cruelty by husband and her in-laws. He, therefore, held that the accused are not liable for offences punishable under Sections 498-A and 306 of I.P.C. and acquitted them of the said offences. 09. Learned counsel for the petitioner and learned A.P.P. for respondent relied upon certain authorities. 10. Shri Ladda placed reliance upon the case of Kiran Kumar vs. State of M.P. 2001 AIR SCW 5130. In paragraph 3 of the judgment, the Supreme Court has held that if short term sentence is allowed to run during pendency of the appeal, the appeal 8 itself will become for all practical purposes infructuous and in such circumstances the court may suspend the sentence. 11. Second case relied upon by Advocate Shri Ladda is Rohit Trivedi vs. State of Maharashtra 2009 (1) Bom.C.R. (Cri.) 900 and he referred to paragraphs 10 and 11 of the judgment. In the reported case, it was observed that the dying declarations were recorded at a later stage and there were inconsistencies in the dying declarations and evidence of Doctor, medical papers and E.P.R. register. So, there were two versions. In the circumstances, appeal was allowed. In our case, we are at a stage of considering application for bail and not of appreciating the evidence on record. 12. Learned A.P.P. Shri B.V. Wagh cited the case of Kishori Lal vs. Rupa (2004) 7 SCC 638. The Supreme Court has laid down law regarding bail pending appeal, in paragraphs 4,5,6 and 8 which read thus; 9 "4. Section 389 of the Code deals with suspension of execution of sentence pending the appeal and release of the appellant on bail. There is a distinction between bail and suspension of sentence. One of the essential ingredients of Section 389 is the requirement for the appellate court to record reasons in writing for ordering suspension of execution of sentence or order appealed against. If he is in confinement, the said court can direct that he be released on bail or on his own bond. The requirement of recording of the relevant aspects and the order directing suspension of sentence and grant of bail should not be passed as a matter of routine. "5. The appellate court is duty-bound to objectively assess the matter and to record reasons for the conclusion that the case warrants suspension of execution of sentence and grant of bail. In the instant case, the only factor which seems to have weighed with the High Court for directing suspension of sentence and grant of bail is the absence of allegation of misuse of liberty during the earlier period when the accused-respondents were on bail. 6. The mere fact that during the trial, they were granted bail and there was no allegation of misuse of liberty, is really 10 not of much significance. The effect of bail granted during trial loses significance when on completion of trial, the accused persons have been found guilty. The mere fact that during the period when the accused persons were on bail during trial there was no misuse of liberties, does not per se warrant suspension of execution of sentence and grant of bail. What really was necessary to be considered by the High Court is whether reasons existed to suspend the execution of sentence and thereafter grant bail. The High Court does not seem to have kept the correct principle in view. 8. In Vijay Kumar v. Narendra and Ramji Prasad v. Ratan Kumar Jaiswal it was held by this Court that in case involving conviction under Section302 IPC, it is only in exceptional cases that the benefit of suspension of sentence can be granted. The impugned order of the High Court does not meet the requirement. In Vijay Kumar case it was held that in considering the prayer for bail in a case involving a serious offence like murder punishable under Section 302 IPC, the court should consider the relevant factors like the nature of accusation made against the accused, the manner in which the crime is alleged to have been committed, the gravity of the offence and the desirability of releasing the 11 accused on bail after they have been convicted for committed the serious offence of murder. These aspects have not been considered by the High Court, while passing the impugned order. " 13. Having regard to the above legal principles and considering the facts and circumstances on record of this case, it also needs to be mentioned that this is not the stage at which detail appreciation of evidence can be made. But at the same time, it may be noted that the learned judge in paragraph 42 of his judgment held that the medical history and first dying declaration were more or less result of tutoring and the possibility of accidental burn injuries was almost nil. The learned Judge recorded good reasons for disbelieving the theory of accident. So far as the dying declarations recorded after Vanita was admitted in the Government Medical College Hospital, Aurangabad are concerned, unless the allegation regarding rape was true, absolutely there was no reason for Vanita to involve her elder brother-in-law (the appellant herein) in her dying declarations. It is abundantly clear that these dying declarations were not directed against the husband and his parents. So, ordinarily those could not be result of tutoring by the persons 12 of parental side of Vanita. At the same time, that there was no one even from the side of in-laws of Vanita to tutor her to falsely involve the appellant in rape case. It does not appear from the totality of the circumstances that the husband of Vanita or his parents or Vanita's parents had any ill will or enmity against Gorakhnath. 14. Priam facie, in my opinion, this is not a case for grant of bail. The application is, therefore, rejected. However, since there are very few under- trial cases pending in this court, the appeal can be expedited immediately after paperbook is ready. Application accordingly disposed of. pnd/criap4161.09 (P.R.BORKAR, J.)