1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR Criminal Application (APPA) No. 33/2010 Criminal Appeal No.17/2010 Sundrabai @ Saraswati Sriram Bele Vs. State of Maharashtra. Office Notes, Office Memoranda of Coram, Appearances, Courts orders or directions Court’s or Judge’s orders and Registrar’s orders. Mr. R.M. Patwardhan, Adv. for the applicant Mr. T.A. Mirza, APP for the respondent. CORAM: A.P. LAVANDE & R.C.CHAVAN, JJ. Date of reserving the order :19/3/2010. Date of Pronouncing the order: 23/3/2010. The applicant, who has been convicted by the Additional Sessions Judge, Pusad in Sessions Case No.16/2007 for the offence punishable under Section 302 of the Indian Penal Code for having committed murder Durga Pande, by judgment and order dated 30th December, 2009, seeks suspension of sentence and bail. It is the case of the prosecution that on 18.9.2006 at about 9.00 p. m. Durga, daughter of Pralhad Pande was set ablaze by the applicant by pouring kerosene on her. She was taken to Rural hospital at Savana in auto-rickshaw. While being taken to hospital, she disclosed to Papaprasad Pande (PW 3) and his wife Vaishali Pande (PW 2) and Munnibai Pande (PW 1) that accused had set her ablaze. Medical 2 Officer at Savana referred her to Government hospital, Yavatmal, where she was admitted. On 4.10.2006, statement of Durga was recorded by the Executive Magistrate (PW 5) in presence of Dr. Saurabh Ambatkar (PW 8). Durga stated in her dying declaration that she was set ablaze by the applicant. On 6.11.2006 Durga succumbed to her injuries. The post-mortem was conducted and the doctor opined that she had died due to septicemic shock due to burns. On 9.11.2006 Police Station, Yavatmal registered A.D. No. 9/2006 and conducted enquiry into A.D. In the enquiry it transpired that father of Durga Pralhad had illicit relation with the applicant and the applicant in order to get rid of Durga who was obstacle in their relation set Durga ablaze. F.I.R. was registered on 14.11.2006 and after investigation, charge-sheet was filed against the applicant. During the course of the trial, the prosecution examined nine witnesses and produced several documents. The applicant examined one witness in her defence. The defence of the applicant was of total denial. The applicant further contended that Durga while preparing tea for herself, accidentally caught fire and sustained burns and she was falsely implicated at the instance of Paparasad 3 Pande, who had grievance against her. Learned trial Court relied upon the dying declaration recorded by Executive Magistrate (PW 5) and also oral dying declaration and the spot panchanama and convicted the applicant for the offence of murder of Durga. Mr. Patwardhan, learned counsel for the applicant, submitted that the evidence led by the prosecution does not prove offence of murder of Durga beyond reasonable doubt against the applicant and the applicant is entitled to be acquitted on the following grounds:- (I) dying declaration (Ex. 45) recorded by the Executive Magistrate does not inspire confidence inasmuch as the same does not bear any date nor the thumb mark of the declarant is attested. (II) oral dying declaration made to Munnibai Pande( PW 1), Vaishali Pande (PW 2) and Papaprasad Pande (PW3) do not inspire confidence since they did not disclose the same for a considerable long time. (III) There was considerable delay in recording F.I.R. which throw serious doubt about the complicity of the applicant in the crime; 4 (IV) The prosecution has not led any evidence to establish the presence of the applicant in the house of Pralhad on 18.9.2006 in the morning when Durga sustained burn injuries; (V) The prosecution has not proved motive i. e. Pralhad, father of deceased Durga had illicit relations with the applicant; Per contra, Mr. Mirza, learned APP submitted that the written dying declaration stands corroborated by oral dying declarations made to Munnibai Pande( PW 1), Vaishali Pande (PW 2) and Papaprasad Pande (PW3). Moreover, although there is no direct evidence of illicit relationship between the applicant and Pralhad and the evidence on record clearly suggests that the same was the motive for the commission of the crime. We have considered the rival submissions and perused the record. No doubt, there was delay in lodging F.I.R. and the investigation of the crime, but we are in complete agreement 5 with the learned trial Court that the Investigating Agency was reluctant to investigate the crime for some reason best known to it. It is surprising that although in the dying declaration recorded on 4.10.2006 deceased Durga implicated the applicant still no steps were taken by the Investigating Agency to investigate the crime. Having regard to this factual back ground, in our considered opinion, the delay in lodging F.I.R. as well as in investigation of the crime, cannot be said to be fatal to the prosecution case. Although, there is no direct evidence about illicit relations between the applicant and Pralhad and that the same was the motive for commission of the crime, the evidence on record clearly suggests that Pralhad obviously did not support the prosecution case in order to protect the applicant. He went to hospital on the next day which is a tell tale circumstance, which goes against Pralhad, the father of deceased Durga, who in the normal course was expected to rush to her daughter, who had sustained burn injuries. Moreover, his denial that the applicant was working as maid servant in his house is yet another circumstance which clearly proves that Pralhad wanted to protect the applicant. Non-disclosure of oral dying declarations by Munnibai 6 Pande( PW 1), Vaishali Pande (PW 2) and Papaprasad Pande (PW3) made to them by deceased Durga for a considerable length of time can be well understood since they did not want to disclose that Pralhad was having illicit relations with the applicant. No doubt, there are certain irregularities committed by the Magistrate while recording dying declaration but some are not such to completely discredit the dying declaration. The evidence of PW 5, the Executive Magistrate, which is corroborated by Dr. Saurabh Ambatkar (PW 8) clearly proves the complicity of the applicant in the commission of the crime. The same stands corroborated by oral dying declaration made to Munnibai Pande( PW 1), Vaishali Pande (PW 2) and Papaprasad Pande (PW3). The presence of kerosene on the clothes of Durga lends corroboration to the prosecution case that she was set ablaze after pouring kerosene on her and the same completely belies the defence version that Durga sustained accidental burns while preparing tea. Thus, there is ample evidence on record to prove the complicity of the applicant in the commission of murder of 7 Durga. The applicant has not made out an exceptional case for suspension of substantive sentence and bail pending disposal of the appeal. In view of the above, we are of the considered opinion that this is not a fit case for suspension of substantive sentence and grant of bail to the applicant. The application is, therefore, dismissed. JUDGE JUDGE Ambulkar.