Datta @ Ashok Anandrao Tupekar And ... vs The State Of Maharashtra
2021 Latest Caselaw 9158 Bom

                                                       Cri. Appln. No.836/2021
                                     :: 1 ::



           IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                      BENCH AT AURANGABAD

               CRIMINAL APPLICATION NO.836 OF 2021 IN
                   CRIMINAL APPEAL NO.182 OF 2021


 Datta @ Ashok s/o Anandrao Tupekar & ors.                   ... APPLICANTS

          VERSUS

 The State of Maharashtra                           ...           RESPONDENT

                              .......
 Mr. Satej S. Jadhav, Advocate holding for
 Mr. G.P. Shinde, Advocate for applicant
 Mr. S.N. Morampalle, A.P.P. for respondent - State
                              .......

                                CORAM :        R. G. AVACHAT, J.

                           Date of reserving order : 24th June, 2021
                           Date of pronouncing order : 14th July, 2021


 ORDER:

This is an application for suspension of sentence of

imprisonment. The applicants have been convicted for the

offence punishable under Sections 498-A read with Section 34

of the Indian Penal Code and sentenced to suffer rigorous

imprisonment for two years and to pay fine of Rs.1000/- each,

in default to suffer simple imprisonment for one month. The

applicants are further convicted for the offence punishable

under Sections 304-B read with Section 34 of the Indian Penal

Code and sentenced to suffer rigorous imprisonment for ten

Cri. Appln. No.836/2021 :: 2 ::

years and to pay fine of Rs.3000/- each, in default to undergo

simple imprisonment for three months. Both the sentences

have been directed to run concurrently. Thus, the applicants

have to suffer a maximum sentence of imprisonment of 10

years.

2. Heard learned counsel for the applicants. Perused

the impugned judgment and the evidence relied on.

3. Mr. Satej S. Jadhav, learned counsel for the

applicants would submit that, the deceased was not keeping

well. she died of cerebro pulmonary edima. The applicants

could not be held responsible for the death of the deceased.

According to learned counsel, the appeal is not likely to come

up for final hearing immediately. the applicants were bail

pending trial. He, therefore, urged for grant of the

application.

4. The learned A.P.P. would, on the other hand,

submit that, a young bride met with unnatural death within

five months of her marriage. There were injuries on her

person. The learned A.P.P., therefore, urged for rejection of

the application.

5. The applicant No.1 was husband of deceased

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Savita. The applicants No.2 and 3 were her parents-in-law.

She died within four months of her marriage. The cause of

death is cerebro pulmonary edima. The sisters-in-law have

been acquitted. The applicants No.2 and 3 are more than 55

years of age. The Medical Officer, who had examined the

deceased and conducted the post mortem, noticed two fresh

injuries on the neck of the deceased.

6. It is in the evidence of the Medical Officer that, on

conducting the post mortem, he had reserved his opinion.

Vicera was preserved for chemical analysis. Organs were kept

for histopathological examination. On receipt of the C.A. and

pathological reports, he opined the cause of death to be

cerebro pulmonary edima. It is further in his evidence that :-

"It is true to say that, if cause of death is uncertain and cannot be given, it is helpful to use technology of histopathology. Such report is relevant in cases of cancer. It is true to say that, if any person dies naturally and his cause of death cannot be ascertained, we use to call report of histopathology. It is also true to say that, if any person is ill for 8 days, there is possibility of cerebro pulmonary edima (saturation of water). It is true to say that, due to pressure on vain of brain and lungs and cerebro pulmonary edima, attack is possible. It is true to say that, due to cerebro pulmonary edima, attack is possible. It is true to say that, cerebro pulmonary edeme is possible in intact brain. It is not true to say that, if cerebro pulmonary edima is

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present in brain, there is possibility of attack."

7. The applicants were on bail pending trial. The

applicant No.2 (father-in-law) is 68 years of age while the

applicant No.3 (mother-in-law) is about 54. The appeal is not

likely to have its turn for final hearing in near future. The

cerebro pulmonary edima can be caused by more than one

reasons.

8. In case of Bhagwan Rama Shinde Gosai and

others Vs. State of Gujarat reported in (1999) 4 SCC 421, the

Hon'ble Supreme Court observed :-

"3. When a convicted person is sentenced to a fixed period of sentence and when he files an appeal under any statutory right, suspension of sentence can be considered by the appellate court liberally unless there are exceptional circumstances. Of course, if there is any statutory restriction against suspension of sentence it is a different matter. Similarly, when the sentence is life imprisonment the consideration for suspension of sentence could be of a different approach. But if for any reason the sentence of a limited duration cannot be suspended every endeavour should be made to dispose of the appeal on merits more so when a motion for expeditious hearing of the appeal is made in such cases. Otherwise the very valuable right of appeal would be an exercise in futility by efflux of time. When the appellate court finds

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that due to practical reasons such appeals cannot be disposed of expeditiously the appellate court must bestow special concern in the matter of suspending the sentence, so as to make the appeal right, meaningful and effective."

9. In the fitness of things, therefore, I am inclined to

grant the application. Hence the order :-

ORDER

Criminal Application is allowed. Pending the

appeal, the substantive sentence imposed by the trial Court is

suspended and the applicants shall be released on bail on

furnishing solvent surety in the sum of Rs.15,000/- (Rupees

fifteen thousand) each with one surety in the like amount.

( R. G. AVACHAT ) JUDGE

fmp/-