Bombay High Court
Jaydeo S/O Jagdish Sajjal vs State Of Mah. Thr. Pso Ps Chamorshi ... on 28 April, 2022
Bench: V.M. Deshpande, Amit B. Borkar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
: NAGPUR BENCH : NAGPUR.
CRIMINAL APPLICATION (APPA) No. 546 of 2021
IN
CRIMINAL APPEAL NO. 396 OF 2021
JAYDEO S/o JAGDISH SAJJAL
VERSUS
STATE OF MAH., THRU. P.S.O., P.S., CHAMORSHI, DIST. GADCHIROLI
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Office Notes, Office Memoranda of Court's or Judge's Order
Coram, appearances, Court's Orders
or directions and Registrar's order
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Shri A. C. Jaltare, Advocate for the appellant/applicant.
Shri S. S. Doifode, A. P. P. for the respondent/State.
CORAM : V. M. DESHPANDE and AMIT B. BORKAR, JJ.
DATE : APRIL 28, 2022.
1. Heard Shri A.C. Jaltare, learned counsel for the
applicant and Shri S.S. Doifode, learned Additional Public
Prosecutor for the respondent/State.
2. This is an application for suspension of substantive
jail sentence and for grant of bail.
3. The applicant was convicted by the learned
Additional Sessions Judge, Gadchiroli in Sessions Case No.
42/2020 on 05.04.2021 for the offence punishable under
Section 302 of the Indian Penal Code and sentenced him
to suffer imprisonment for life and to pay a fine of
Rs.5,000/-. Against the said judgment, the applicant has
preferred this appeal.
4. The appeal was admitted by this Court on
23.09.2021 and it was ordered on that date that the
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present application for suspension of substantive jail
sentence and for grant of bail will be considered after
receipt of the record and proceedings.
5. The record and proceedings of the Sessions Case
were called for. Today, when the application for
suspension of substantive jail sentence and for grant of
bail was placed before the Court for consideration, the
office has also placed the record and proceedings of the
Sessions Case. With the assistance of learned counsel for
both the sides, we have gone through the relevant portion
of the record and proceedings and the notes of evidence,
which were required for the decision of the present
application.
6. The deceased in this case was one Beena. She was
the wife of the present applicant. Primarily, the case of
the prosecution is based on written dying declaration
(Exhibit-25). It was recorded by Jitendra Gadewar
(PW8), who was working as Naib Tahsildar and who had
been to the hospital of Dr. Paliwal (PW12) as per the
notice given to him to record the dying declaration of
Beena. Dying Declaration (Exh.25) is duly proved by
Jitendra Gadewar (PW8) that he noted down the version
given by the deceased. Dying declaration (Exh.25) would
show that on 06.01.2020, there was a quarrel in between
her and her husband (applicant). The recitals of the dying
declaration would also show that not only there was a
quarrel, but also there was pushing to each other by them.
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As per the dying declaration, the applicant poured
kerosene on her and set her ablaze.
7. Admittedly, deceased Beena was admitted in the
hospital of Dr. Paliwal (PW12). His evidence would show
that she was admitted on 07.01.2020 and she was an
indoor patient of his hospital till her death i.e.
19.01.2020. He also states that on 14.01.2020, the
Tahsildar had come to his hospital and dying declaration
was recorded.
8. Learned counsel for the applicant submitted that
the prosecution is not fair on its part against the applicant
inasmuch as in his submission, prior to recording of dying
declaration (Exh.25), another dying declaration was
recorded by a Police Constable in the hospital itself,
however the said is not placed on record. In order to
buttress the said submission, the learned counsel has
invited our attention to the cross-examination of Dr.
Paliwal (PW12), more particularly, paragraph 5 of his
cross-examination. From reading of paragraph 5 from the
deposition of Dr. Paliwal, it is clear that on 07.01.2020 i.e.
seven days prior to recording of dying declaration
(Exh.25), one Police Constable came to his hospital and
after giving endorsement on the memo that Beena was fit
to give statement, her statement was recorded by the said
Police Constable. Not only that, paragraph 5 shows that
the Police Constable took the said dying declaration to the
police station. What was that dying declaration is not
brought on record. However, from the cross-examination
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of Dr. Paliwal (PW12), it is clear that prior to recording of
the dying declaration (Exh.25), another dying declaration
was recorded. It was the duty of the prosecution to place
all the written dying declarations on record. It was the
duty of the Investigating Officer and the prosecution to
place entire evidence before the Court and it is for the
Court how to appreciate the evidence.
9. Further, insofar as dying declaration (Exh.25) is
concerned, neither Dr. Paliwal (PW12) nor Jitendra
Gadewar (PW8), the scribe of Exh.25, state from the
witness box that prior to recording of the statement, the
Doctor has examined her. It is also pertinent to note the
admission given by Dr. Paliwal (PW12) in his cross-
examination in paragraph 6. It would be useful to
reproduce the relevant portion herein below :
"It is true that on 13.01.2020, Bina stopped
responding to any treatment. It is true that
on 13.01.2020, I found that survival
chances of Bina were minimum. It is true
that on 13.01.2020, the talking capacity of
Bina was over."
10. Thus, it is clear that on 13.01.2020, Bina was not in
a position to talk. Therefore, the dying declaration
(Exh.25) which was recorded on 14.01.2020 comes under
the dark cloud of doubt.
11. In view of the aforesaid discussion, we are of the
view that the applicant has made out a prima facie case
for suspension of the substantive jail sentence and for
grant of bail. Hence, we pass the following order :-
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ORDER
1. The criminal application is allowed.
2. The judgment and order of conviction passed by the
learned Additional Sessions Judge, Gadchiroli in Sessions
Case No. 42/2020 on 05.04.2021 for the offence
punishable under Section 302 of the Indian Penal Code
shall stand suspended during pendency of this appeal.
3. Applicant - Jaydeo Jagdish Sajjal be released on
bail on he executing PR bond of Rs.5,000/- with one
solvent surety of the like amount.
4. The applicant is directed to attend Police Station,
Chamorshi, Dist. Gadchiroli once in six months and mark
his presence during pendency of this appeal.
5. The applicant is directed to remain personally
present before this Court at the time of final hearing of
this appeal.
6. The learned Judge, who is ultimately issuing the
release warrant shall ensure that entire fine amount is
paid, if not already paid.
JUDGE JUDGE
Diwale
Digitally signed byPARAG
PRABHAKARRAO DIWALE
Signing Date:28.04.2022
17:36
