Bombay High Court
Maruti Arjun Thokal vs The State Of Maharashtra on 20 October, 2021
Bench: V.K. Jadhav, Shrikant Dattatray Kulkarni
63-CriAppln-1583-21 (bail)
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1583 OF 2021
IN
CRIMINAL APPEAL NO. 359 OF 2021
Maruti S/o Arjun Thokal ... Applicant
(Ori. Accused)
Versus
The State of Maharashtra
and another ... Respondents
....
Mr. N.B. Narwade, Advocate for the Applicant
Mr. Shashibhusan P. Deshmukh, APP for Respondent No.1 /
State
Mr. S.R. Andhale, Advocate for Respondent No.2.
....
CORAM : V. K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATE : 20th OCTOBER, 2021
PER COURT:-
1. Pending Criminal Appeal No. 359 of 2021 preferred
against the judgment and order passed by the learned
Additional Sessions Judge, Ahmednagar dated 08.07.2021 in
Sessions Case No.237 of 2016 convicting thereby the applicant/
original accused for having committed the offence punishable
under Section 302 of IPC and sentencing him to suffer life
imprisonment and to pay a fine of Rs. 50,000/-, in default to
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suffer R.I. for six months, and also convicting him for the
offence punishable under Section 506 of IPC and sentencing
him to suffer two years imprisonment and to pay a fine of
Rs.5,000/-, in default to suffer R.I. for one month, the
applicant/original accused has preferred this application for
suspension of substantive part of the sentence and for bail.
2. The learned counsel for the applicant/original accused
submits that the prosecution case entirely rests upon dying
declarations of deceased and there is no direct evidence in this
case. Learned counsel submits that it is a case of multiple dying
declarations. The incident had taken place on 24.03.2016.
Deceased Pratiksha had sustained burns, and therefore, she was
shifted to City Care Hospital, Ahmednagr. The applicant is the
distant cousin of deceased Pratiksha. Learned counsel submits
that on 24.03.2016 itself, in City Care Hospital, Ahmednagar,
two dying declarations came to be recorded. PW-7 ASI Mohan
Laxman Gajare has recorded dying declaration (Exhibit 37) and
on the same day, the Naib Tahasildar has recorded the dying
declaration of deceased Pratiksha (Exhibit 61). In both dying
declarations, deceased Pratiksha had stated that she sustained
burns accidentally. Learned counsel submits that, however,
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third dying declaration of deceased Pratiksha was recorded
when she was shifted to Apex Hospital, Ahmednagar and it was
recorded two days after the incident i.e. on 26.03.2016, wherein
for the first time deceased Pratiksha had made allegations
against the applicant/original accused that he had poured
kerosene on her person and set her on fire. Learned counsel
submits that the trial Court has not considered the possibility of
tutoring while recording the third dying declaration and even
the second dying declaration (Exhibit 61), which came to be
recorded by the Naib Tahasildar is also not considered. Learned
counsel submits that the applicant/original accused was on bail
during the trial. Learned counsel for the applicant submits that
though the applicant/original accused is ready to deposit the
fine amount, the same was not accepted before the trial Court
since the trial Court has sent the Record and Proceedings to this
Court. The learned counsel for the applicant thus seeks
permission to deposit the fine amount before this Court.
3. Learned APP assisted by Advocate Mr. S.R. Andhale,
submits that the prosecution has not relied upon the dying
declarations at Exhibit 37 and Exhibit 61, respectively.
However, the defence has admitted those dying declarations,
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and therefore, even without examination of the Naib Tahasildar,
the said dying declaration came to be exhibited as Exhibit 61.
Learned APP submits that dying declaration at Exhibit 54, which
is recorded at Apex Hospital, Ahmednagar by PW-7 ASI Mohan
Gajare is the only authentic dying declaration and the trial
Court has rightly placed reliance on it. Learned APP submits
that even during the course of recording of the first dying
declaration (Exhibit 37) at City Care Hospital, Ahmednagar, the
applicant-accused was present near the deceased and it is
admitted by PW-7 Mohan Gajare that she was in the frightened
state of mind at that time.
4. It is a case of multiple dying declarations and there is a
glaring inconsistency between three dying declarations. In the
first two dying declarations recorded on the date of incident, i.e.
on 24.03.2016, deceased Pratiksha had stated about sustaining
burns accidentally. Whereas, in the third dying declaration,
which is recorded two days after the incident, deceased
Pratiksha had made allegations against the applicant/original
accused. It is for the learned APP to make appropriate
submissions during the hearing of the appeal as to whether the
first two dying declarations can be considered, when the
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prosecution has not placed reliance on it. However, the
applicant/original accused was on bail during the course of trial.
In view of the same, we proceed to pass the following order:-
ORDER
(i) The criminal application is hereby allowed.
(ii) Pending the Criminal Appeal No. 359 of 2021
preferred against the Judgment and order of conviction
passed by the Additional Sessions Judge, Ahmednagar
dated 08.07.2021 in Sessions Case No. 237 of 2016,
substantive part of the sentence is hereby suspended and
till then, the applicant/original accused - Maruti S/o Arjun
Thokal be released on bail on furnishing personal bond of
Rs. 20,000/- (Rupees Twenty Thousand) with one solvent
surety of the like amount.
(iii) The applicant is permitted to deposit the fine
amount before this Court.
(iv) The criminal application is accordingly disposed of.
[ SHRIKANT D. KULKARNI ] [ V. K. JADHAV ]
JUDGE JUDGE
S.P. Rane
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