Bombay High Court
Surendra Bharatsingh Chavan And ... vs The State Of Maharashtra on 13 October, 2022
Bench: R. G. Avachat, R. M. Joshi
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
CRIMINAL APPLICATION NO. 1678 OF 2022 IN
CRIMINAL APPEAL NO. 372 OF 2022
Surendra s/o Bharatsingh Chavan & others Applicants
Versus
The State of Maharashtra Respondent
Mr. A. B. Girase, Advocate for the applicants.
Mr. A. M. Phule, APP for the State.
CORAM : R. G. AVACHAT &
R. M. JOSHI, JJ.
DATE :13th OCTOBER, 2022.
PER COURT :
1. By this application fled under Section 389 of the Code of
Criminal Procedure, applicants are seeking suspension of
substantive sentence imposed in Sessions Case No. 3/2009 by
judgment and order dated 26th April, 2022 passed by learned
Additional Sessions Judge -1, Udgir, Dist. Latur.
2. Applicants were charged for offence punishable under
Sections 302, 304-B, 498A, 323, 504 read with Section 34 of the
Indian Penal Code. Applicants along with co-accused were
prosecuted for the above offences for allegation that on the fateful
day, by pouring kerosene on the person of the deceased, she was set
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ablaze. It is also alleged that deceased was subjected to mental and
physical cruelty for demand of dowry. On conclusion of trial, present
applicants came to be convicted for the offences punishable under
Sections 302, 304-B and 498A read with Section 34 of the Indian
Penal Code and sentenced to suffer life imprisonment for the offence
punishable under Section 302 of the Indian Penal Code.
3. Learned advocate for the applicants submitted that
during the course of trial, applicants were on bail and applicants No.
2 and 3 are female. He drew attention of this Court to the impugned
judgment as well as material evidence on record. According to him,
there are multiple inconsistent dying declarations, oral as well as
written, which make the case of prosecution not reliable. It is
submitted that learned trial Court after discarding other dying
declarations placed reliance on dying declaration Exhibit 114 which is
without mentioning time as well as endorsement of the Medical
Offcer about ftness of the victim to make statement. Thus,
according to him, applicants have good chance of success in appeal.
4. Learned APP opposed the application and submitted that
learned trial Court after considering the material evidence on record
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has convicted present applicants and having regard to the serious
nature of offence they are not entitled for bail on suspension of
sentence.
5. Prima facie consideration of material on record shows
that deceased had sustained 98% of burns. She claimed to have
made oral dying declarations to her mother, brother, Chayadevi,
Ramakant, Brimohan and Vinod. All the dying declarations are
inconsistent and have been discarded by learned trial Court. Learned
trial Court placed reliance on dying declaration Exhibit 114. However,
prima facie, perusal of said dying declaration shows that there is no
endorsement of Medical Offcer showing recording of the said dying
declaration in the presence of Medical Offcer and examination of the
maker of the statement before and after completion of the statement.
Even endorsement made on police memo (Exhibit 113) also does not
state that patient is conscious and oriented. It only states that
patient is in condition to make statement. All these aspects of the
case require consideration at the time of hearing of appeal.
6. Applicants No. 2 and 3 are female. One of the dying
declarations completely exonerate applicant No. 1. All applicants
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were on bail during trial. There is no chance of appeal being taken
for hearing in near future. In such circumstances, a case is made
out by applicants for suspension of sentence and for enlargement on
bail. Hence the order :-
ORDER
(i) Criminal application is allowed in terms of
prayer clause 'B'.
(ii) Pending the appeal, the substantive sentence of
imprisonment imposed by the trial Court is
suspended. The applicants be released on bail on
their execution of P.R. Bond in the sum of
Rs. 15,000/- each (Rs. Fifteen Thousand only) with
one surety each in the like amount.
(iii) Bail before the trial Court.
( R. M. JOSHI) ( R. G. AVACHAT)
Judge Judge
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