ASHOK ANNA MORE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Pending the criminal appeal no.675 of 2020 preferred against the judgment and order of conviction passed by the Sessions Judge, Aurangabad dated 23.11.2020 in Sessions Case No.173 of 2016 convicting thereby the appellant/accused for the offence punishable under section 302 of the Indian Penal Code and sentencing him to suffer life imprisonment and to pay a fne of Rs.2,000/- (Rs. Two Thousandl, in default to suffer R.I. for six months, the applicant/original accused has preferred this application for suspension of the substantive part of the sentence and bail.

(2.) Learned counsel for the applicant/accused submits that the applicant was on bail during the course of the trial. Learned counsel submits that the prosecution case entirely rests upon the two dying declarations i.e. exhibit-23 and exhibit-20, respectively. PW-5 PSI Ajay Suryawanshi has recorded the complaint-cum-dying declaration exhibit-23 and the Executive Magistrate PW-3 Dattatraya Nilawad has recorded the dying declaration exhibit-20. Learned counsel submits that, there is a discrepancy of time in the dying declarations. Learned counsel has pointed out that as per the doctor's endorsement exhibit-23 was completed at about 06.48 p.m. on 26.1.2016. Learned counsel submits that, so far as complaint-cum-dying declaration exhibit 23 recorded by PW-5 PSI Ajay Suryawanshi is concerned, admittedly, PW-7 Dr. Abhishek Kumbhar has not made endorsement on the said dying declaration about mental ftness of the deceased for recording her statement prior to commencement of recording of her dying declaration exhibit 23. Learned counsel submits that exhibit 20 i.e. recorded by Executive Magistrate, time of starting of the statement is at about 7.00 p.m. Learned counsel submits that PW-7 Dr. Abhishek Kumbhar had hardly few minutes to examine the deceased again and before commencement of recording of the dying-declaration by PW-3 Dattatraya Nilawad (Executive Magistratel. Learned counsel submits that, even though, dying declaration exhibit-23 was recorded by the Executive Magistrate, deceased had not stated specifcally as to who had set her on fre. She has made allegations only to the extent that the applicant/original accused had poured kerosene on her person while she was cooking. Except that, she has not made any allegations against the applicant/accused. Learned counsel submits that, thus, the dying declaration exhibit-23 and 20 are not consistent on material parts. Learned counsel submits that there are two daughters. At the time of alleged incident, elder daughter was two and half years and younger daughter is of only six months old. Learned counsel submits that, only aged mother of the applicant is in the house to look after the said daughters.

(3.) Learned APP has strongly resisted the application on the ground that dying declaration exhibit-23 and exhibit-20 respectively are reliable, consistent and made voluntarily by the deceased. Learned APP submits that, there is a minor discrepancy about time on the dying declaration and that is not material even. Learned APP submits that, the prosecution has proved that the applicant/accused had poured kerosene on the person of his wife and set her on fre with the help of match stick. The applicant may not be released on bail.