Bombay High Court
Wasimkhan Rasulkha Pathan And Another vs The State Of Maharashtra on 1 October, 2025
2025:BHC-AUG:27401
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD.
920 CRIMINAL APPLICATION NO.3636 OF 2025
IN APEAL/584/2025
1] Wasimkhan Rasulkha Pathan
2] Imrankha Rasulkha Pathan ..Applicants
Versus
The State of Maharashtra ..Respondent
.....
Mr. Nilesh S. Ghanekar - Advocate for Applicants
Mr. S. K. Shirse - APP for the State
.....
CORAM : NEERAJ P. DHOTE, J.
Dated : OCTOBER 01, 2025
PER COURT :-
1. Heard Mr. Nilesh S. Ghanekar, learned Advocate for the
Applicants, and Mr. S. K. Shirse, learned APP for the State. Perused the
papers on record.
2. This is an Application for suspension of substantive sentence
imposed upon the Applicants by the learned Sessions Judge,
Aurangabad, vide the Judgment and Order dated 18.07.2025 passed in
Sessions Case No. 147 of 2016, convicting and sentencing the Applicants
as follows :
"1. Accused nos.1 to 6 are hereby acquitted of the offence
punishable under Section 302 r/w. 34 of the Indian Penal
Code vide Section 235 (1) of the Code of Criminal
Procedure.
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2. Accused nos.5 and 6 are hereby acquitted of the offences
punishable under Sections 304-B and 498-A r/w. 34 of the
Indian Penal Code vide Section 235 (1) of the Code of
Criminal Procedure.
3. Accused no.1 to 4 are hereby convicted for the offence
punishable under Section 304-B r/w. 34 of the Indian
Penal Code vide Section 235 (2) of the Code of Criminal
Procedure and sentenced to suffer rigorous imprisonment
for 10 years.
4. Accused no.1 to 4 are hereby convicted for the offence
punishable under Section 498-A r/w. 34 of the Indian
Penal Code vide Section 235 (2) of the Code of Criminal
Procedure and sentenced to suffer simple imprisonment
for 2 years and to pay fine of Rs.5,000/- each, in default to
suffer simple imprisonment for 3 months.
5 to 12. ................."
3. The Applicants are the Husband and the Brother-in-law of the
Deceased. The Deceased died within a period of sixteen [16] months of
her marriage due to burn injuries at her matrimonial house. It is the case
of the Prosecution that, the victim was harassed by the Convicts for
dowry and was burnt. Initially, the charge-sheet was filed for the
offences punishable under Sections 302, 304-B, 498-A, 323, 506 r/w. 34
of the Indian Penal Code. To establish the case, the Prosecution
examined in all sixteen [16] witnesses. Considering the evidence on
record, the learned Trial Court convicted the Applicants as above.
4. It is submitted by the learned Advocate for the Applicants that,
the learned Trial Court has disbelieved the case of oral dying
declaration. The learned Trial Court passed the conviction on the basis
of the evidence of witnesses which was hearsay in nature. The evidence
of the sister of the Deceased, which is heavily relied upon by the learned
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Trial Court, is not corroborated by the witnesses, as she was not residing
with the Applicants. The Applicants were on bail during the Trial and
they are behind the bars for a period of 5 ½ months. The Appeal will
take its own time and therefore, the Application be allowed.
5. The Application is opposed by the learned APP. He submits that
the evidence of the Sister and Uncle of the Deceased are sufficient to
maintain the Conviction. The factum of unnatural death of the Victim in
her matrimonial house is sufficient to draw inference against the
Accused. He submits that the learned Trial Court has rightly appreciated
the evidence on record and therefore, the Application be rejected.
6. As seen from the papers on record, the learned Trial Court has not
believed the evidence of the Oral Dying Declaration. The father and
brother-in-law of the Victim did not support the case of the prosecution.
Though the evidence of PW7 sister of Deceased, and PW5 the Uncle of
Deceased, shows that the villagers and the Chairman of the Tantamukti
Samittee i.e. PW6, tried to settle the dispute, the evidence of PW6 shows
that, though he was the Chairman of the Tantamukti Samittee, he
admits in his cross-examination that, he did not know the in-laws of the
Deceased, nor had he conversed with them and he was not in a position
to identify the in-laws of the Deceased. The evidence of PW7 that, the
Deceased informed telephonically that her in-laws were troubling her for
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money is an improvement. The evidence of PW5 regarding ill-treatment
is not specific. The evidence of PW7 - sister of Deceased prima facie
does not get corroboration from the evidence of PW5 - the Uncle of the
Deceased and PW6 - Chairman of the Tantamukti Samittee. The
Applicants were on Bail during the Trial. The punishment is in the
nature of term sentence. The Appeal will take some time to come up for
final hearing. In this view of the matter, I am inclined to allow the
Application. Hence, the following order.
ORDER
[i] Application is allowed.
[ii] The substantive sentence imposed upon the Applicants by the
learned Sessions Judge, Aurangabad, in Sessions Case No. 147 of 2016
by Judgment and Order dated 18.07.2025, is hereby suspended till the
final disposal of Criminal Appeal.
[iii] The Applicants be released on P.R. of Rs.15,000/- [Rupees Fifteen
Thousand] each, with one surety in the like amount each.
[iv] Bail before the Trial Court.
[v] Application stands disposed off.
( NEERAJ P. DHOTE, J. )
GGP
Signed by: Gajanan G. Punde
Designation: PA To Honourable Judge
Date: 01/10/2025 19:40:08
