Shahaji Ashruba Falake And ... vs The State Of Maharashtra
2022 Latest Caselaw 1432 Bom

                                         1        934 CRI. APPLICATION 3259-21.odt


       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  BENCH AT AURANGABAD

         957 CRIMINAL APPLICATION NO.3259 OF 2021
            IN CRIMINAL APPEAL NO. 675 OF 2021

                SHAHAJI ASHRUBA FALAKE AND ANOTHER
                                VERSUS
                     THE STATE OF MAHARASHTRA
                                   ...
              Advocate for the Applicant : Mr. N. L. Jadhav
              APP for Respondent -State : Mr. S. D. Ghayal
                                   ...

                              CORAM : V. K. JADHAV AND
                                             SANDIPKUMAR C. MORE, JJ.
                              DATED : 10th FEBRUARY, 2022.
                                             ..

ORDER : (PER : SANDIPKUMAR C. MORE, J) :



1.   Heard both sides.


2.   The applicants, who are respective accused nos. 1 and 2 in

Sessions Case No. 87 of 2016, have preferred this application for

suspension of their sentence and to release them on bail during

pendency of their appeal.


3.   Learned counsel for the applicants submits that the applicants

are poor labourers and seasonally employed as sugar-cane cutting

labourers. If they are not released on bail, their respective families

would face starvation.              He further submits that the applicants /




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accused have been convicted on the basis of multiple dying

declarations of the deceased by the learned trial court without any

corroboration. He also submits that the learned trial court, despite

contradictions        and      discrepancies   in     the    dying       declarations,

convicted them by believing the same.                   Learned counsel for the

applicants also submits that both the applicants were on bail during

pendency of the trial of Sessions Case No. 87 of 2016.


4.   On the contrary, the learned APP strongly opposed the

application on the ground that the trial court has convicted the

present applicants in the aforesaid sessions case mainly on the

basis of dying declarations, which are already proved to be

trustworthy, reliable and voluntary in nature.                 As such, he prayed

for dismissal of the application.


5.   Admittedly, under the judgment passed by the learned

Sessions Judge, Beed in Sessions Case No. 87 of 2016 dated

07/12/2021 the applicants, who are accused nos.1 and 2 have been

convicted for the ofence punishable under Section 302 read with

34 of IPC and sentenced to sufer simple imprisonment for life and

to pay fne of Rs.5,000/- each. Further it is apparent that during

pendency of the trial of the said sessions case, the learned trial

court had granted regular bail to applicant no.1 and the Single




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Bench of this Court (Coram : A. M. Badar, J.) had granted regular

bail to applicant no.2 in Criminal Application No.5023 of 2016 by

order dated 10/10/2016.


6.   Learned counsel for the applicants vehemently argued that

the learned trial court believed the two dying declarations of the

deceased i.e. wife of present applicant no.1, wherein she had made

accusation of setting her ablaze against the present applicants.

Learned counsel for the applicants by going through the evidence

recorded by the learned trial court, tried to show as to how there

were material contradictions and discrepancies in both the dying

declarations by pointing out evidence of witnesses on the same.

However, the submissions of the learned counsel to that efect

need to be considered at the time of fnal argument of their appeal.

After going through the judgment, it is apparent that the learned

trial court has convicted the applicants on the basis of two dying

declarations; one is recorded by P.W.3 Pandharinath Kisanrao

Sasane i.e. Police Head Constable just after admission of the

deceased in Civil Hospital, Beed.       Moreover, the other dying

declaration appears to be recorded by Special Executive Magistrate

P.W.5 Vilas Vitthalrao Telang of Tahsil Ofce, Beed. On perusal of

both these dying declarations, which are at Exhibit-80 and 98, it is

evident that the deceased is consistent on the point that applicant




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no.1 poured kerosene on her person and applicant no.2, who is her

brother-in-law, set her ablaze with help of match stick. Under such

circumstances, considering the prima facie material against the

applicants in the form of two consistent dying declarations of the

deceased, we are not inclined to suspend their sentence during

pendency of appeal.                    The submissions as regards the doubtful

circumstances while recording those dying declarations made by

the learned counsel for the applicants, can be considered at the

time of fnal argument. Hence, we pass following order.


                                           ORDER

The criminal application is hereby rejected and disposed

of accordingly.

(SANDIPKUMAR C. MORE, J.) (V. K. JADHAV, J.)

vsm/-