Bombay High Court
Mangala W/O Kishor Ambhore vs State Of Mah. Thr. Pso Ps Nandgaon ... on 5 October, 2021
Bench: A.S. Chandurkar, G. A. Sanap
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
CRIMINAL APPLICATION (APPA) NO.564 OF 2021
IN
CRIMINAL APPEAL NO.411 OF 2021
Mangala W/o Kishor Ambhore,
Aged 32 years, Occ. Housewife,
R/o Kanzara, Post Dhanora Mogal,
Tq. Nandgaon Khandeshwar,
Dist. Amravati .... APPLICANT
// VERSUS //
State of Maharashtra
Through Police Station Officer,
Police Station Nandgaon,
Khandeshwar,
Tq. Nandgaon Khandeshwar,
Dist. Amravati .... RESPONDENT
Shri P.R. Agrawal, advocate for the appellant
Smt. S. S. Jachak, APP for the respondent/State.
___________________________________________________________________
CORAM : A.S. CHANDURKAR AND G. A. SANAP, JJ.
DATE : 05.10.2021.
JUDGMENT: (Per: G.A. Sanap, J.)
1. The appellant has been convicted by the learned
Additional Sessions Judge, Amravati vide order dated
9th September, 2021 in Sessions Case No.101/2015 for the
offences punishable under Section 302 of the Indian Penal Code
and sentenced to suffer rigorous imprisonment for life and to
pay fine of Rs.10,000/- and in default of payment of fine to
suffer simple imprisonment for six months.
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2. The appellant has challenged the order of conviction
and sentence by filing the appeal.
3. The appellant pending the appeal has made the
application for suspension of substantive sentence and for
release on bail. The appellant faced the trial on the allegations
that on 10th January, 2015 she poured the kerosine on the person
of deceased Smt. Sandhya and set her ablaze. It is the case of
the prosecution that since the marriage of the deceased Sandhya,
the appellant was ill treating her. The appellant and the
deceased were residing separately but adjoining to each other.
Before the unfortunate incident, there was quarrel between the
deceased and the appellant. The appellant taking the undue
advantage of the situation, committed murder of the deceased.
4. The appellant faced the trial for the murder of
deceased. The learned Additional Sessions Judge, Amravati on
the basis of the evidence of the five witnesses and documentary
evidence held that the prosecution has proved the case against
the appellant. In this application, it is the case of the appellant
that the evidence is not sufficient to prove the offence of murder.
The appellant was on bail during the trial. She has not misused
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the liberty. The appellant has a good case on merit. The
appellant has, therefore, prayed for suspension of sentence and
bail, pending the appeal.
5. Investigating Officer through Smt. Sangita Jachak,
learned Additional Public Prosecutor filed the reply and opposed
the application. It is contended that the oral dying declaration
made by the deceased to her father Mahendra Sadhivrao Gadling
(PW-1) has been found to be credible. The dying declaration has
been corroborated by other material evidence. The offence
proved against the appellant is grotesque and brutal. The
appellant does not deserve leniency. No case has been made out
either to suspend the sentence or to release the appellant on bail.
6. We have heard Shri P.R.Agrawal, learned Advocate
for the appellant and Smt. Sangita Jachak, learned Additional
Public Prosecutor for the respondent/State. We have gone
through the record and proceeding and particularly the
judgment delivered by the learned Additional Sessions Judge,
Amravati.
7. Learned Advocate for the appellant submitted that the
oral dying declaration of the deceased to her father has been
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made the sole basis of the conviction. The learned Advocate for
the appellant pointed out that the dying declaration recorded by
the police officer has been discarded by the learned Additional
Sessions Judge, Amravati. The learned Advocate for the
appellant took us through the material part of the evidence to
substantiate his submission that the evidence is not sufficient to
prove the guilt against the appellant. The learned Advocate
submitted that there was no motive for commission of crime.
In the submission of learned Advocate the offence of culpable
homicide amounting to murder would not get attracted
inasmuch as it was result of a sudden fight in the heat of passion
upon a sudden quarrel. Learned Advocate submitted that the
appellant is 32 years old and she has a male child who was born
on 10th November, 2008. He further submitted that the appellant
has a good case on merits and therefore, the sentence may be
suspended and she may be released on bail.
8. Smt. Sangita Jachak, learned Additional Public
Prosecutor submitted that the learned Additional Sessions Judge,
Amravati has recorded the reasons in support of his findings. The
learned APP submitted that the prosecution has proved the guilt
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against the appellant beyond all reasonable doubt. Learned APP
for the respondent/State pointed out that learned Additional
Sessions Judge, Amravati minutely appreciated the material
evidence and particularly the oral dying declaration made by the
deceased to her father. Learned APP took us through the
evidence of Mahendra Sadhivrao Gadling (PW-1) who is the
father of the deceased, other evidence and judgment passed by
the Sessions Judge.
9. We have given thoughtful consideration to the
submissions. It is pertinent to mention that there was no motive
for commission of a crime. As can be seen from the case of the
prosecution that before the incident, there was quarrel between
the appellant and deceased who was related to the appellant. A
perusal of the judgment, would show that the advocate
appearing for the appellant, for some reason or the other did not
make submission on the basis of the available evidence to award
the conviction and sentence to the appellant under 304 part I or
part II.
10. Be that as it may, the fact remains that the appellant
has challenged the judgment passed by the learned Additional
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Sessions Judge, Amravati. The final hearing of the appeal may
take its own time. The appellant has 13 years old son. It can be
seen on perusal of the judgment that the husband of the
deceased has not supported the case of the prosecution. Their
houses are adjoining to each other. In view of the fact and
circumstances, we conclude that this is a fit case for suspension
of sentence and release of the appellant on bail. Hence the
following order:-
ORDER
(i) The Criminal Application is allowed.
Substantive sentence awarded by the learned
Addtional Sessions Judge, Amravati in Sessions Case
No.101/2015 under Section 302 of the Indian Penal
Code is suspended during the pendency of the appeal.
(ii) The appellant Mangala W/o Kishor
Ambhore be released on furnishing PR bond in the
sum of Rs.25,000/- (Rupees Twenty Five Thousand
Only) and one or two sureties in the like amount.
JUDGE JUDGE
manisha
