1 cri-appa687&690-10 jdk IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 687 OF 2010 IN CRIMINAL APPEAL NO. 386 OF 2010 Kasabai Baban Mene ..Applicant Vs. The State of Maharashtra ..Respondent WITH CRIMINAL APPLICATION NO. 690 OF 2010 IN CRIMINAL APPEAL NO. 398 OF 2010 Vaishali Dinesh Mene ..Applicant Vs. The State of Maharashtra ..Respondent .... Mr. Hrishikesh Mundargi Adv. i/b YKS Legal for Applicants Mrs.U.V.Kejariwal APP for State .... CORAM : SMT.RANJANA DESAI AND SMT.V.K.TAHILRAMANI, JJ. DATE : JULY 15, 2010 P.C.: 2 cri-appa687&690-10 1 One Sheetal wife of Dilip Baban Mene died of burn injuries on 25.10.2008 at 5 a.m. in Sasoon Hospital, Pune. In respect of this incident, the present applicants along with three others were tried in Sessions Case No. 676 of 2009 for offences punishable under Section 302 and 498-A of IPC. The applicant in Criminal Application No. 687 of 2010 is original accused 1. She is the mother in law of deceased Sheetal. Applicant in Criminal Application No. 690 of 2010 is original accused 2. She is the sister in law of deceased Sheetal. Original accused 3 is the husband of deceased Sheetal and original accused 4 is father in law of deceased Sheetal. Accused 5 is the husband of accused 2 (applicant in Criminal Application No. 690 of 2010). 2 By judgment and order dated 23.4.2010, learned Sessions Judge acquitted accused 3, 4 and 5. He however, convicted the present applicants under Section 302 r.w. 34 of the IPC and sentenced them to suffer life imprisonment. He also convicted them under Section 498-A of IPC and sentenced them to suffer RI for three years. Appeals preferred by the applicants have been admitted. Applicants have preferred the present applications for bail. 3 cri-appa687&690-10 3 We have heard Mr. Mundargi, learned counsel for the applicants at some length. He pointed out that PW 1 Sachin Katkar brother of the deceased has turned hospital. Learned counsel also pointed out that PW 3 Mangal Shitole the neighbour of the deceased, has also turned hostile. Counsel submitted that the fact that brother of deceased has not supported the prosecution case, is sufficient to indicate its falsity. Counsel then submitted that the deceased was admitted in hospital at 10.30 in the night of 24.10.2008 and she died at 5 a.m. on 25.10.2008. There was enough time for the police to call the Special Executive Magistrate to record the dying declaration of the deceased. However, Special Executive Magistrate was not called. Counsel submitted that adverse inference needs to be drawn against the prosecution. Counsel further submitted that the deceased had received 94% burn injuries and therefore, her physical condition and mental state was very important. Counsel submitted that evidence of PW 4 Police Constable Waghule does not indicate that he had obtained written certificate of the doctor for recording the statement of the deceased. He pointed out that this fact is admitted by PW 4 Waghule in his cross- examination. 4 It is not possible for us to accept any of the submissions of 4 cri-appa687&690-10 learned counsel for the applicants. PW 2 Police Havaladar Sunil Adhari who was attached to Lonavala Police Station has stated that on 24.10.2008 while he was on duty, he received a phone call from Haveli Police Station that one lady by name Sheetal had received burn injuries and she was complaining against her mother in law and wife of her husband ’s brother. 5 PW 4 Police Constable Waghule has also clearly stated in his evidence that he received information that the deceased was admitted in Ward No.25 of Sasoon Hospital, Pune due to burn injuries. He immediately went to the said ward. PW 5 Dr. Mistri was on duty. According to him, Dr. Mistri examined the deceased and told him that she was in a fit condition to give a statement. Accordingly, he recorded a statement. PW 4 Waghule has stated that deceased stated that on 24.10.2008 the applicants told her that they were not properly honoured and dowry was not offered in the marriage. They stated that gold ring was not offered in the marriage. They threatened her. The deceased asked her as to why they were commenting on her maternal family. Thereafter her mother in law i.e. accused 1 and her sister in law i.e. accused 2 poured kerosene on her and set her on fire. Due to burn injuries she started screaming. The neighbours extinguished fire. It is 5 cri-appa687&690-10 true that in the cross-examination Police Constable Waghule has stated that he had not obtained written certificate of the doctor for recording statement of deceased Sheetal. But he has clearly stated that after recording statement of Sheetal, he obtained the endorsement of the doctor thereon. He has denied the suggestion that Sheetal was not in a position to give a statement. In any case, in Laxman Vs. State of Maharashtra; AIR 2002 S.C. 2973, the Supreme Court has held that certification of the doctor that the declarant is in a fit state of mind is a rule of caution. Absence of certification of the doctor as to the fitness of the mind of the declarant would not render dying declaration unacceptable. What is essentially required is that a person who records it must be satisfied that the deceased was in a fit state of mind. 6 The prosecution has also examined PW 5 Dr. Mistri. Dr. Mistri has corroborated the evidence of PW 4 Waghule . He has confirmed that he had examined the deceased. He has clearly stated that he found the deceased to be in a fit state of mind to give her statement. He has identified the signature on Exh. 42 as his signature. In the cross-examination, Dr. Mistri has stood firm. We have, therefore no reason to disbelieve the evidence of Dr. Mistri. He is an independent witness. He has no reason to falsely implicate the applicants. It was 6 cri-appa687&690-10 pointed out that the accused no.2 Vaishali was not present at the scene of offence. We however, find that no defence witness has been examined to substantiate the case of alibi. In our opinion, in view of the clear statement made by the deceased in dying declaration, it is not possible for us to release the applicants on bail. Learned counsel submitted that Vaishali was on bail during the trial. She has a minor child and hence, she may be released on bail. In our prima facie opinion, the evidence against applicants is clinching and therefore, they cannot be released on bail. However, considering the fact that applicant-Vaishali has a child, we shall leave it open to her to make bail application after one year in case the appeal does not reach final hearing. Hence, the following order. ORDER 1) Criminal Application No. 687 of 2010 and Criminal Application No. 690 of 2010 are rejected. It would however, be open to the applicant in Criminal Application No. 690 of 2010 i.e. Vaishali to prefer an application for bail after one year in case, her appeal does not reach final hearing. Needless to state that at that stage, her prayer will be considered in accordance with law. 2) This order does not prevent the applicants from preferring applications for bail on medical grounds or on account of change 7 cri-appa687&690-10 in circumstances. 3) Applications disposed of. [SMT. RANJANA DESAI, J.] [ SMT. V.K.TAHILRAMANI, J.]