1 23.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.23 OF 2011 IN CRIMINAL APPEAL NO.163 OF 2009 Goutam Vasant Gandhale ...Applicant Versus The State of Maharashtra ...Respondent ...... Mr.D.G.Khamkar for Applicant. Ms.M.H.Mhatre, A.P.P. for Respondent/State. ...... CORAM:- A.M.KHANWILKAR AND A.R.JOSHI, JJ. DATED:- JANUARY 28, 2011. P.C. 1. Heard Counsel for the applicant and the learned A.P.P. 2. The applicant has been convicted for offence punishable under Sections 302 r/w 34 of the Indian Penal Code (`I.P.C.’) and has been ordered to suffer rigorous imprisonment for life and to pay a fine of Rs. 500/-. In default of payment of fine, to undergo further rigorous imprisonment for three months. 3. The applicant is mainly relying on the first dying declaration of the deceased recorded at 3.45 p.m. on 25th August, 2007 (Exhibit 20). 2 23.11 According to the applicant, if the version given by the deceased in the first dying declaration is to be accepted as it is, it is unfathomable that finding of guilt for the offence under Section 302 of the I.P.C. can be recorded against the applicant. The statement records that there was some verbal fight between the applicant and his wife deceased Sandhya whereafter the applicant left the house. After he had left the house, the said Sandhya in the fate of anger, poured kerosene on herself and set herself on fire. If this version is to be accepted as it is, we are in agreement with the applicant that it would certainly not be a case of 302 of the I.P.C.. Indeed, the prosecution may be in a position to establish some other offence against the applicant but certainly not 302 of the I.P.C. However, this dying declaration has been discarded by the Trial Court on the finding that when the same was recorded, the husband (applicant herein) was present. Further, doctor was absent when the said statement was recorded. For that, the Trial Court has relied on the evidence of PW 3. However, on going through the evidence of PW 3, it is noticed that the said witness has spoken about recording of statement by police in earlier point of time and not the statement Exhibit 20. The Trial Court has mixed up the said evidence and therefore has proceeded on the wrong premise. If that finding is to be overturned, there is no reason why the first dying declaration of Sandhya should be ignored 3 23.11 when doctor (P.W.5) in his evidence has deposed that Sandhya had sustained 62% burns. Therefore, he had given requisition for recording her statement. The police came to the hospital at about 3.30 p.m. to 3.45 p.m. when he once again examined Sandhya. He found her to be fully oriented and conscious to give the statement. Besides, the statement Exhibit 20 was recorded in his presence. Suffice it to observe that the finding recorded by the Trial Court in Para 38 appears to be doubtful. If that finding is overtured, it would necessarily follow that there is nothing on record to even remotely suggest that the first dying declaration of Sandhya recorded at 3.45 p.m. in the presence of PW 5 doctor was influenced by any one. In that case, it would necessarily follow that it is not a case of Section 302 of I.P.C. at all for which the applicant has been convicted. 4. Learned A.P.P., however, submits that, the theory propounded on the basis of second dying declaration is reinforced from the evidence such as CA report which indicates that kerosene stains were found on the clothes of the applicant. This argument does not impress us inasmuch as if the first dying declaration were to be accepted as it is, the benefit of doubt would pass on to the applicant accused. 4 23.11 5. For the time being, suffice it to observe that good ground for grant of bail has been made out by the applicant. There are no reported antecedents against the applicant. Taking overall view of the matter, the applicant is released on bail on the following conditions: (a) The Applicant Goutam Vasant Gandhale is directed to be released on bail in connection with Sessions Case No.664 of 2007 arising out of C.R. No.380/2007, if not required in any other case, on executing bail bond in the sum of Rs.15,000/- Rupees Fifteen Thousand) with one or two sureties in the like amount. (b) The Applicant shall not leave Districts Thane and Mumbai without prior intimation of 48 hours in writing to the local police station and also disclose his travel programme and the contact place where he would visit. (c) The Applicant shall report to the nearest Police Station of his residence on first Monday of every English Calender Month between 9.30 a.m. to 11.30 a.m. (d) The Applicant shall inform his latest place of residence immediately after being released and/or change of 5 23.11 residence, if any from time to time to the Investigating Officer of the local Police Station. 6. Application disposed of on the above terms. (A.R.JOSHI, J.) (A.M.KHANWILKAR, J.)