1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CRIMINAL APPLICATION NO.2791 OF 2009 IN CRIMINAL APPEAL NO.375 OF 2009 Hemraj s/o Ramsing Rathod ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ----- Shri A.B. Girase, Advocate for the applicant Shri B.J. Sonawane, A.P.P. for the respondent ----- CORAM : NARESH H. PATIL AND SHRIHARI P. DAVARE, JJ. DATED : 2nd September, 2009. ORAL ORDER (PER PATIL, J.): 1. The applicant has been convicted by Additional Sessions Judge, Dhule in Sessions Case No.18/2009 vide judgment and order dated 28.7.2009 for an offence punishable under Section 302 of the Indian Penal Code and is sentenced to suffer imprisonment for life and to pay fine of Rs.2000/-, in default to suffer simple imprisonment for two months.. 2. Heard. 2 3. The prosecution case is that the applicant was married with deceased Supdibai on 12.6.2008. After marriage, they started living together at village Kharde. The accused behaved with deceased Supdibai well for 15 days, but thereafter started ill-treating her under influence of liquor. The applicant was suspecting the chastity of his wife and this was a reason for ill- treating the deceased. The deceased had informed her parents about the ill-treatment meted out to her at the hands of the applicant. On Diwali festival, the deceased visited her parents on 24.10.2008. That time too she narrated her grievance before the parents. The parents took precaution by sending Pinki @ Anita, younger sister of deceased to stay with the deceased at her in- laws’ place. 4. On 15.11.2008, it is alleged that the P.S.O., Dhule Police Station received a message that Supdibai was burnt and admitted in Civil Hospital, Dhule. During the course of investigation, the prosecution claims to have recorded dying declaration of the deceased (Exh.25) by Head Constable P.W.5 Ravindra Wadile. Another dying declaration was recorded (Exh. 32) by Executive Magistrate (P.W.6) Jayant Padvi. The spot panchanama was drawn, inquest was also conducted. The post mortem was conducted. After completing the investigation, police filed charge sheet against the applicant. The charge was framed 3 against the applicant for an offence punishable under Sections 302 and 498-A of the Indian Penal Code. This Court admitted the appeal filed by the applicant on 17.8.2009 and record and proceedings was called for consideration of the bail application filed by the applicant before this Court. Accordingly, we have perused the record and proceedings and the judgment and order passed by the trial Court. 5. Shri Girase, learned counsel for the applicant submitted that, both the dying declarations are not worth placing reliance upon. The deceased was knowing Banjara language. Whatever the deceased had stated, if at all, according to the counsel, it must be in Banjara language, but the dying declarations are recorded in Marathi language. The father of the deceased was present in the hospital along with other persons including the Sarpanch of the village who helped the prosecution witnesses in writing down the alleged dying declarations by translating it from Banjara to Marathi language. The counsel further submitted that the contents of the dying declarations recorded were not narrated by the witness in Court and, therefore, no reliance would be placed upon the dying declarations. As regards the oral dying declaration made before the father of the deceased, (P.W.2) Darasingh Rathod, the counsel submitted that he is highly interested witness and, therefore, considering the 4 overall facts and circumstances of the case, this witness is not reliable. By pointing out the lapses and lacuna in the manner in which the prosecution investigated the case and conducted the trial, the counsel submitted that the accused is prejudiced. The earlier reports made to the police station and the medical officer in connection with the incident were also not brought before the Court. All these circumstances raise suspicion about the intrinsic value which the trial Court has accorded to the evidence of the prosecution. In the submissions of the counsel, though applicant’s initial bail application was rejected by the trial Court, the applicant did not make any further application and that is why the applicant was in jail during trial. The applicant is young person and, therefore, the counsel submits that, he be released on bail on certain conditions. 6. Learned A.P.P. submitted that the dying declarations are worth reliable and at this stage, it would not be appropriate to scan minutely the effect of recording dying declarations by the prosecution witnesses. In the submissions of learned A.P.P., apart from the dying declarations, there are other circumstances which clearly point out that the applicant must be culprit. By drawing attention to the spot panchanama, the learned A.P.P. submitted that no stove was found in the room where the husband and wife resided which would negate the defence version that the 5 deceased might have died due to explosion of the kerosene stove. In the submissions of the learned A.P.P., the evidence of the father of the deceased cannot be discarded so lightly. 7. We have gone through the dying declarations recorded at Exhibit 25 and Exhibit 33. The Head constable, in his examination-in-chief stated that he was shown the statement of Supdibai and its contents were correct. It was singed by him (Exh. 25). The witness further stated that Supdibai stated before him that her husband poured kerosene oil on her person and set her on fire. The father of the deceased deposed before the Court that on enquiry, the deceased clearly stated that accused poured kerosene on the person of her daughter and set her ablaze. The deceased received 65% burns. The counsel for the defence submitted that as deceased was badly burnt and looking to the burn injuries suffered by the deceased, the theory of the prosecution that deceased putting right T.I. on the dying dying declaration is highly suspicious. These issues are required to be gone into minutely at the time of final hearing of the appeal, which is already admitted. The trial Court has considered the entire evidence and recorded finding against the applicant. 8. P.W.3 Anita @ Pinki, younger sister of the deceased was cited as eye witness to the incident. 6 9. It cannot be forgotten that deceased was married with the applicant on 12.6.2008 and the deceased suffered burn injuries and died at the residence of the applicant on 15.11.2008, The circumstances, resulting into death of the deceased must have been, in all probabilities, known to the applicant. If we peruse the statement of the applicant recorded under Section 313 of the Criminal Procedure Code, we do not notice any explanation by the accused which speaks for itself. 10. Considering the facts and circumstances of the case, we are of the view that the application filed by the applicant for releasing him on bail deserves to be rejected. It is accordingly rejected. [ SHRIHARI P. DAVARE, J.] [ NARESH H. PATIL, J.] fmp/cri2791.09