AJN 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.678 OF 2010 IN CRIMINAL APPEAL NO.379 OF 2010 Sou. Bismilla Ismail Mulani & Anr. ... Applicants Vs. The State of Maharashtra ... Respondents Mr. G.A. Karmalkar i/b Mr. G.S. Hegde for the applicants. Mr. H.J. Dedhia, A.P.P. for the State. CORAM: MRS. RANJANA DESAI & MRS. V.K. TAHILRAMANI, JJ. DATE ON WHICH THE ORDER IS RESERVED : 2ND JULY, 2010. DATE ON WHICH THE ORDER IS PRONOUNCED: 20TH JULY, 2010. P.C.:- 1. The applicants are original accused 2 and 3 respectively. They were charged along with original accused 1 for offences punishable under Sections 498-A, AJN 2 304-B and 302 read with Section 34 of the Indian Penal Code (for short, “the IPC”). Original accused 2 is the wife of deceased original accused 1. Original accused 3 is their son. In view of death of original accused 1, the criminal case abated as against him and, hence, original accused 2 and 3 were tried for the aforesaid offences by the Additional Sessions Judge, Malshiras in Sessions Case No.83 of 2004. By the order impugned in this appeal, original accused 2 and 3 have been convicted for the offences punishable under Sections 302 read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for life. They have also been convicted for the offences punishable under Section 498-A read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for one year. They have also been convicted for the offences punishable under Section 304-B read with Section 34 of the IPC and sentenced to suffer rigorous imprisonment for seven years. Substantive sentences have been ordered to run concurrently. AJN 3 2. In this application, the applicants viz. original accused 2 and 3 respectively have prayed for bail. The case of the prosecution is that the accused subjected deceased Rehana, wife of accused 3 to cruelty. They asked the deceased to bring gold ring from her parents. They sent her to her parents' house thrice after beating her. According to the prosecution, on 27/2/2004 at about 2.00 p.m., accused 3 held the deceased tightly and accused 2 poured kerosene on her and set her on fire. The deceased succumbed to the injuries on 28/2/2004. 3. In support of its case, the prosecution has examined PW-3 Maula Abdul Shaikh, the father of the deceased. He is the complainant. He has deposed about the ill-treatment meted out to the deceased by the accused. He has stated that on 27/2/2004, he received a message that the deceased was admitted in the hospital. He, therefore, rushed to the Government hospital, Velapur. He saw deceased Rehana in burnt condition. According to him, she told her that accused 1 poured kerosene on her person, her AJN 4 husband caught her and her mother-in-law set her on fire. 4. The prosecution has also examined PW-5 Special Judicial Magistrate Mr. Shivraj Mangule, who has recorded the dying declaration of the deceased on 27/2/2004. He has stated that as requested by Sadar Barzar Police Station, he went to the hospital to record the dying declaration of the deceased. He called the Chief Medical Officer and asked him to examine the patient. He has stated that the Medical Officer examined the patient and, thereafter, he recorded the dying declaration, which is at Ex-55. In this dying declaration, the deceased has stated that the accused poured kerosene on her person, her husband caught her and her mother-in-law set her on fire. 5. The prosecution has also examined PW-6 Dr. Avinash Ghorpade. He has stated that he found the deceased to be conscious and oriented and able to give statement. 6. Learned counsel for the applicants submitted that the AJN 5 evidence of the prosecution witness does not inspire confidence and, hence, the applicants be released on bail. He submitted that accused 2 is about 61 years' old. Counsel submitted that her husband is dead. She was on bail during trial and, hence, in case this court is not inclined to grant bail to accused 3, accused 2 may be released on bail. 7. PW-5 Special Judicial Magistrate Mr. Shivraj Mangule and PW-6 Dr. Avinash Ghorpade are independent witnesses. We have no reason to disbelieve them. PW-3 Maula Abdul Shaikh, the father of the deceased has also deposed about the oral dying declaration made by the deceased to him. In both the dying declarations, the deceased has stated that the accused poured kerosene on her, accused 3 caught hold of her and accused 2 set her on fire. In view of this, it is not possible for us to release the applicants (accused 2 and 3) on bail. 8. It is true that accused 2 is an old lady. But, in view of AJN 6 the prima facie cogent evidence, her prayer for bail also cannot be considered at this stage. If the appeal is not heard for one year, it will be open to her to move this court for bail. This, of course, does not prevent her from moving this court on medical ground or on the ground of change in circumstances. 9. Criminal application is disposed of. [MRS. RANJANA DESAI, J.] [MRS. V.K. TAHILRAMANI, J.]