Bombay High Court
Dhanraj Malkappa Dhale vs The State Of Maharashtra on 30 January, 2023
Bench: V. V. Kankanwadi, Abhay S. Waghwase
10-CriAppln-2310-2021
-1-
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
10 CRIMINAL APPLICATION NO. 2310 OF 2021
IN APEAL/492/2021
DHANRAJ MALKAPPA DHALE
VERSUS
THE STATE OF MAHARASHTRA
.....
Advocate for Applicant : Mr. Nirmal Ravindra
APP for Respondent-State : Mrs. V. S. Choudhary
.....
CORAM : SMT. VIBHA KANKANWADI AND
ABHAY S. WAGHWASE, JJ.
DATED : 30 JANUARY 2023
PER COURT :-
1. The present application has been filed for suspension of
sentence. Applicant/appellant faced trial i.e. Sessions Case No. 5 of
2017 before learned Additional Sessions Judge, Omerga, District
Osmanabad for the offence punishable under Sections 302 and 435 of
IPC. By judgment and order dated 29.01.2021 he has been convicted
thus:
"1. Accused Dhanraj Malkappa Dhale is convicted U/s 235(2) of
Cr.P.C. for the offence punishable under section 302 of Indian
Penal Code. He is sentence to suffer life imprisonment and pay
fine of Rs.5,000/- (Rs. Five thousand only) I/d S.I. for three
months.
2. Accused Dhanraj Malkappa Dhale is convicted U/s 235(2) of
Cr.P.C. for the offence punishable under section 435 of Indian
Penal Code. He is sentence to suffer five years rigorous
imprisonment and pay fine of Rs.4,000/- (Rs. Four thousand
only) I/d S.I. for two months.
10-CriAppln-2310-2021
3. The accused Dhanraj Malkappa Dhale is acquitted U/Sec. 235(1)
of Cr.P.C. for the offence punishable U/Sec.201 of the Indian
Penal Code.
4. Both the sentence will run concurrently.
5. The accused Dhanraj Malkappa Dhale in custody since
03.04.2017 set off is given U/s 428 of Cr.P.C.
6. The muddemal being worthless be destroyed after appeal period
is over.
7. The certified copy of Judgment be issued to the accused free of
cost.
8. Issue conviction warrant accordingly."
2. Heard.
3. It has been vehemently submitted on behalf of the appellant
that there is no direct evidence against the appellant. Up till now he
has undergone about 7 years of imprisonment. The trial Judge has not
considered the evidence on record properly. In fact, the informant,
who is the mother of the appellant, was not the eye witness. Deceased
was the father of appellant and he was sleeping near a heap of fodder
in which he sustained burn injuries. But when there was nobody who
had seen the accused putting the heap of fodder to fire, learned trial
Judge ought not to have concluded that prosecution has proved guilt
of the accused beyond reasonable doubt. The other two witnesses are
10-CriAppln-2310-2021
on the point of conduct of accused after the incident and they cannot
be considered as eye witnesses. When substantial sentence has been
undergone and it will take still long time to hear the appeal, the
appellant deserves to be released on bail by suspension of sentence.
4. Per contra, learned APP supported the reasons given by the trial
court and submitted that the deceased, who was in fact handicapped,
80 years old person, was even unable to move and he had sustained
100% burn injuries. The mother is the informant and has also testified
accordingly. Appellant was in the habit of asking money. He was
addicted to liquor and smoking. He was also giving threats that if
money is not provided to him, he would set them on fire. Accordingly,
it appears that, he has executed the threat. All the prosecution
witnesses have corroborated each other and therefore, the finding
that has been given, holding appellant guilty of committing offence
punishable under Section 302 of IPC, is proper.
5. The first and the foremost fact that is required to be noted is
that the mother of the appellant is the informant. She was aged 70
years when she lodged the FIR. She has given how was the
relationship between herself and her husband with the accused, who
is their son. She has also stated that her husband, who was then 80
10-CriAppln-2310-2021
years of age, was handicapped. The place where deceased received
burn injuries was a heap of fodder and the house which was made of
wood. There appears to be evidence in the nature of PW3 Malang and
PW4 Siraj who had gone to the spot, though after the incident, and
had seen fire to the house and then accused was standing in front of
the house. Instead of extinguishing the fire, accused had ran away
from that place. Medical evidence shows that deceased had sustained
100% burn injuries. The mother has also testified against the son to
prove the motive. No doubt PW9, who is the wife of appellant, has
not supported the prosecution. Taking into consideration the said
evidence, at this prima facie stage, we conclude that no case is made
out for suspending the sentence. Further, accused appellant was never
released on bail throughout the trial. He, undergoing sentence up till
now, cannot be so considered when there is strong evidence against
him. The application is rejected.
[ABHAY S. WAGHWASE, J.] [SMT. VIBHA KANKANWADI, J.]
vre
