Sulabai Hanmant Kale And Another vs The State Of Maharashtra
2022 Latest Caselaw 1705 Bom

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            IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                        BENCH AT AURANGABAD

                62 CRIMINAL APPLICATION NO. 3336 OF 2021
                           IN APEAL/699/2021

                        1. SULABAI HANMANT KALE
                    2. VAISHALI DNYANESHWAR KALE
                       3. MAHADEVI NANDU SHINDE
                                  VERSUS
                     THE STATE OF MAHARASHTRA
                                     .....
            Advocate for Applicants : Mr. Naiknavare Ramesh V.
                APP for Respondent-State : Mr. R. D. Sanap
                                     .....

                               CORAM : V. K. JADHAV AND
                                       SANDIPKUMAR. C. MORE, JJ.
                               DATED : 21st FEBRUARY, 2022

 PER COURT:-


 1.       Pending criminal appeal no. 699/2021, preferred against the

 judgment and order of conviction dated 15.12.2021 passed the

 Sessions Judge, Osmanabad in Sessions Case No. 37/2017, convicting

 thereby each of the applicants for the offence punishable under

 Sections 302 r/w 34 of IPC and sentencing them to suffer

 imprisonment for life and to pay fine of Rs.500/- each, in default to

 suffer simple imprisonment for one month each, the applicants-

 original accused nos. 1 to 3 have preferred this application for

 suspension of the substantive part of the sentence and bail.




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 2.       Learned counsel for the applicants-original accused submits

 that the prosecution case entirely rests upon circumstantial evidence

 and there is no direct evidence in this case. Learned counsel submits

 that the prosecution case entirely rests upon the dying declarations

 Exhibits 48 and 58 respectively. Learned counsel submits that the

 dying declarations are not consistent on material part. On the other

 hand, in the second dying declaration, deceased had added one more

 name i.e. her own brother, who allegedly poured kerosene on her

 person along with other co-accused persons. Learned counsel submits

 that there is no satisfactory evidence about motive. There is a vague

 reference in the prosecution story that long back at some time,

 deceased had allegedly set the jawar crop on fire and therefore, the

 accused persons were quarreling with her. However, there are no

 details about it. Learned counsel submits that even though the

 husband of deceased Mamta had arrived at the spot during the course

 of incident or immediately after the incident, the prosecution has not

 examined him. Learned counsel submits that there is a reference in

 the evidence of PW 6 Sudarshan Late that husband of deceased

 Mamta was not allowing the persons gathered there to extinguish the

 fire and he was reportedly annoyed and therefore giving such

 directions. Learned counsel submits that the husband of deceased

 Mamta would have been the best evidence to disclose as to what



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 happened to deceased Mamta at the relevant time and what was the

 reason for sustaining burns. Learned counsel submits that the dying

 declaration Exhibit 48 is recorded by the Police Constable whereas,

 dying declaration Exhibit 58 allegedly recorded by the Naib Tahsildar.

 In both the dying declarations, there is a reference that the original

 accused nos.1 and 3 i.e. mother and real sister of the deceased,

 poured kerosene on the person of deceased Mamta in the house and

 thereafter, deceased Mamta ran away up to the temple, where

 applicant no.2, who is her sister-in-law, allegedly thrown a match

 stick on her person. However, there is no evidence as to whether

 applicant no.2 has chased her from the house to the said temple. Even

 no role is ascribed to applicant no.2 Vaishali so far as the incident

 allegedly took place in the house. Even though there is evidence that

 some devotees at the temple extinguished the fire, however, in their

 evidence there is no reference as to how deceased Mamta sustained

 burn injuries.



 3.       Learned counsel for the applicants further submits that

 applicant no.3 is carrying pregnancy and as per the report submitted

 by the Chief Medical Officer, Aurangabad Central Prison, the expected

 date of delivery is 2.8.2022. Learned counsel submits that all the

 applicants were on bail during trial.



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 4.       Learned APP has strongly resisted the application. Learned APP

 submits that though there is no direct evidence in this case, however,

 both the dying declarations Exhibits 48 and 58 are consistent on

 material part. The prosecution has proved that applicant nos. 1 and 3

 poured kerosene on the person of deceased Mamta in her house and

 thereafter, applicant no.2 ignited the match stick and set her on fire

 on road near the temple. The applicants are not entitled to be

 released on bail.



 5.       We have carefully perused the dying declarations Exhibits 48

 and 58 respectively. The motive appears to be very weak. There is no

 reference in the dying declarations, nor in the evidence of the

 prosecution witnesses as to when the earlier incident about setting on

 fire the jawar crop had taken place and what led the accused persons,

 who are none else but mother, sister and sister-in-law of the

 deceased, to set deceased Mamta on fire. It is very difficult to believe

 that the applicants before us got annoyed to such an extent because of

 the said incident of setting on fire the jawar crop, for which vague

 reference is given in the dying declarations, that they set on fire

 deceased Mamta for that reason. Furthermore, there is a reference

 about the presence of husband of deceased Mamta in front of the

 temple with the devotees gathered at the temple who tried to



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 extinguish the fire, however, the prosecution has not examined him as

 prosecution witness to explain about the motive and so also about the

 possibility of oral dying declaration, if at all, given by the deceased.

 On the other hand, it appears that deceased Mamta died in Sassoon

 Hospital, Pune four days after the incident and her second dying

 declaration Exhibit 58 came to be recorded by the Naib Tahsildar at

 Sassoon Hospital, Pune. It appears that learned Judge of the trial

 court has not considered the possibility of tutoring. Even though on

 earlier occasion, deceased Mamta had not taken name of her brother,

 however, in the second dying declaration Exhibit 58 recorded by the

 Naib Tahsildar, she has also ascribed a role to her real brother

 Dnyaneshwar, who allegedly poured kerosene on her person. It is

 surprising that even if the incident allegedly took place in the day

 time, there is nothing in the evidence of the prosecution witnesses

 that as to how applicant no.2 went towards the temple and ignited

 the match stick and set deceased Mamta on fire. Furthermore, PW 6

 Sudarshan Late and PW 5 Anand Kadam have only deposed that one

 woman from Pardhi community, namely, Mamta came there in

 burning condition and they extinguished the fire on her person with

 the help of a quilt. They have not deposed that in front of the temple

 deceased Mamta was set on fire by someone.




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 6.       The applicants-accused     were on bail during the trial.

 Furthermore, applicant no.1 Sulabai is 64 years of age. Applicant no.2

 is having one minor son and a husband. Applicant no.3 is having two

 daughters and one son an now she is carrying pregnancy for the

 fourth child and her expected date of delivery is 2.8.2022. In view of

 the discussion above, we are inclined to release all the applicants on

 bail. Hence, the following order:



                                   ORDER

I. Pending Criminal Appeal No. 699 of 2021, the substantive part of the sentence passed against the applicants by the Sessions Judge, Osmanabad vide judgment and order of conviction dated 15.12.2021 in Sessions Case No. 37/2017, convicting them for the offence punishable under Sections 302 r/w 34 of IPC and sentencing them to suffer imprisonment for life each and to pay fine of Rs.500/- each, in default to suffer simple imprisonment for one month each, is hereby suspended and till then, applicant no.1 Sulabai Hanmant Kale, applicant no.2 Vaishali Dnyaneshwar Kale and applicant no.3 Mahadevi Nandu Shinde be released on bail on furnishing P.B. of Rs.20,000/- each with one solvent surety each of the like amount.

II. The Criminal Application is accordingly disposed off.

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