Bombay High Court
Ashok Anna More vs The State Of Maharashtra on 12 July, 2021
Bench: V.K. Jadhav, S. G. Dige
1 CRI APPLN 2434.2020.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO.2434 OF 2020
IN
CRIMINAL APEAL NO.675 OF 2020
ASHOK ANNA MORE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr. Pande Balraj P
APP for Respondent : Mr. S D Ghayal
...
CORAM : V.K. JADHAV & S.G. DIGE, JJ.
Dated : July 12, 2021
...
PER COURT :-
1. Pending the criminal appeal no.675 of 2020
preferred against the judgment and order of conviction
passed by the Sessions Judge, Aurangabad dated
23.11.2020 in Sessions Case No.173 of 2016 convicting
thereby the appellant/accused for the offence
punishable under section 302 of the Indian Penal Code
and sentencing him to suffer life imprisonment and to
pay a fne of Rs.2,000/- (Rs. Two Thousandl, in default
to suffer R.I. for six months, the applicant/original
accused has preferred this application for suspension of
the substantive part of the sentence and bail.
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2. Learned counsel for the applicant/accused
submits that the applicant was on bail during the
course of the trial. Learned counsel submits that the
prosecution case entirely rests upon the two dying
declarations i.e. exhibit-23 and exhibit-20, respectively.
PW-5 PSI Ajay Suryawanshi has recorded the
complaint-cum-dying declaration exhibit-23 and the
Executive Magistrate PW-3 Dattatraya Nilawad has
recorded the dying declaration exhibit-20. Learned
counsel submits that, there is a discrepancy of time in
the dying declarations. Learned counsel has pointed
out that as per the doctor's endorsement exhibit-23 was
completed at about 06.48 p.m. on 26.1.2016. Learned
counsel submits that, so far as complaint-cum-dying
declaration exhibit 23 recorded by PW-5 PSI Ajay
Suryawanshi is concerned, admittedly, PW-7 Dr.
Abhishek Kumbhar has not made endorsement on the
said dying declaration about mental ftness of the
deceased for recording her statement prior to
commencement of recording of her dying declaration
exhibit 23. Learned counsel submits that exhibit 20 i.e.
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recorded by Executive Magistrate, time of starting of the
statement is at about 7.00 p.m. Learned counsel
submits that PW-7 Dr. Abhishek Kumbhar had hardly
few minutes to examine the deceased again and before
commencement of recording of the dying-declaration by
PW-3 Dattatraya Nilawad (Executive Magistratel.
Learned counsel submits that, even though, dying
declaration exhibit-23 was recorded by the Executive
Magistrate, deceased had not stated specifcally as to
who had set her on fre. She has made allegations only
to the extent that the applicant/original accused had
poured kerosene on her person while she was cooking.
Except that, she has not made any allegations against
the applicant/accused. Learned counsel submits that,
thus, the dying declaration exhibit-23 and 20 are not
consistent on material parts. Learned counsel submits
that there are two daughters. At the time of alleged
incident, elder daughter was two and half years and
younger daughter is of only six months old. Learned
counsel submits that, only aged mother of the applicant
is in the house to look after the said daughters.
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3. Learned APP has strongly resisted the application
on the ground that dying declaration exhibit-23 and
exhibit-20 respectively are reliable, consistent and made
voluntarily by the deceased. Learned APP submits that,
there is a minor discrepancy about time on the dying
declaration and that is not material even. Learned APP
submits that, the prosecution has proved that the
applicant/accused had poured kerosene on the person
of his wife and set her on fre with the help of match
stick. The applicant may not be released on bail.
4. On going through carefully the judgment and
notes of evidence placed before us by the learned
counsel for the applicant, it appears that on 26.1.2016
PW-5 PSI Ajay Suryawanshi has recorded the complaint-
cum-dying declaration of the deceased, no time is
mentioned on it. No starting time of the statement was
mentioned, however, it appears from the endorsement
made by PW-7 Dr. Abhishek Kumbhar that said
statement was completed around 06.48 p.m. PW 5 PSI
Ajay Suryawanshi has admitted in his cross-
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examination that, PW-7 Dr. Kumbhar has not made
endorsement before he started recording the complaint-
cum-dying declaration of the deceased exhibit-23.
According to him, PW-7 Dr. Abhishek Kumbhar was
present in the Ward and said ward is big in size. Even if
we consider the time as 06.48 pm when the complaint-
cum-dying declaration was completely recorded,
however, immediately thereafter PW 3 Dattatraya
Nilawad has recorded the dying-declaration of the
deceased. As per endorsement made on exhibit-20
dying declaration, which is recorded by the Executive
Magistrate PW-3 Dattatraya Nilawad, which is in
question and answer form that, it was commenced at
about 7 p.m. and it was completed at about 7.28 p.m.
There is an endorsement of PW-7 Dr. Abhishek
Kumbhar at about 6.50 p.m. So we fnd much
substance in the submissions made on behalf of the
applicant/accused that there is some discrepancy in
recording of the time of commencement and completion
of the dying declaration exhibit-20 and exhibit-23,
respectively. So far as the dying declaration exhibit-23
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recorded by PW-5 PSI Ajay Suryawanshi is concerned, it
is surprising that PW-5 PSI Suryawanshi has not
obtained opinion of PW-7 Dr. Abhishek Kumbhar about
mental state of mind of the deceased before recording
her complaint-cum-dying declaration exhibit-23. The
relatives of the deceased gathered in the hospital till
that time. PW-2 Gopinath Shere, who happened to be
the father of deceased Manisha, has admitted in his
cross-examination that, voice of Manisha was low voice
and for listening one had to go to close to Manisha.
Under these circumstances, PW-5 PSI Suryawanshi
should have taken care to record her dying declaration
after PW 7 Dr. Abhishek Kumbhar certifes her
conscious state of mind. Apart from this, we have also
carefully gone through the dying declaration exhibit-20
recorded by PW 3 Naib Tahsildar Dattatraya Nilawad.
Though, deceased had stated in her dying declaration
recorded by him that applicant/accused had poured
kerosene on her person, however, she has not disclosed
to PW 3 Dattatraya Nilawad as to who has set her on
fre. It is the case of the prosecution that
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applicant/accused returned to the house under the
influence of liquor. Deceased Manisha had questioned
to him about it and, thus quarrel had taken place
between them. The applicant/accused started giving
abuses to her and also extended beating by fst and kick
blows. Under these circumstances, prima facie, we fnd
this inconsistency in the statement/dying declaration
exhibit 20 fatal to the prosecution. Thus, considering
the entire aspect of the case and, since the
applicant/accused was on bail during the trial, we are
inclined to release him on bail. Further, we also
consider that there is no male member in the family of
the applicant and aged mother of the applicant/accused
is looking after the minor daughters, who are aged
about 2.5 years and six months respectively as on the
date of incident. Hence, following order.
ORDER
I. Criminal Application is hereby allowed.
II. Pending the hearing and fnal disposal of the
Criminal Appeal No.675 of 2020 [Ashok Anna
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8 CRI APPLN 2434.2020.odt
More Vs. The State of Maharashtra],
substantive part of the sentence passed by
the Sessions Judge, Aurangabad by
judgment and order dated 23.11.2020 in
Sessions Case No.173 of 2016 is hereby
suspended, and till then, the
applicant/accused Ashok Anna More be
released on bail on furnishing P.B. of
Rs.20,000/- (Rs. Twenty Thousandl with one
solvent surety of the like amount.
III. Application accordingly disposed off.
IV. Record and Proceeding be sent back to the
trial court for preparation of the paper book.
( S. G. DIGE, J. ) ( V.K. JADHAV, J. )
...
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