Allowed

Sushila Radhelal Radhe Gangbhoir @ Suman Shahu ( in Jail) v. State of Maharashtra Thr. Its Police Station Officer

Bombay HC19 Mar 2013APPA/80/2013

Case brief

AI extract

What is this about?

In habeas corpus/maintenance applications, the High Court found the prosecution failed to establish the identity of the accused linked to the dying declaration regarding a murder under IPC 302 and ruled for suspension of sentence and bail, reserving the appeal for further hearing.

What did the court decide?

Suspended the death/sentence imposed and directed release on bail upon furnishing bond of Rs. 25,000 each with sureties.

Sushila Radhelal Radhe Gangbhoir @ Suman Shahu (… — Murder and Culpable Homicide | Bombay HC (2013)

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19032013APPA No.81.2013 1

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

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NAGPUR BENCH, NAGPUR

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Criminal Application No. 80 of 2013 (APPA) in Criminal Appeal No. 65 of 2013.

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( Suman @ Sushila Radhelal @ Radhe Shahu vs. State of Maharashtra, through its Police Station Officer Kalamna, Police Station, Nagpur.)

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Criminal Application No. 81 of 2013 (APPA) in Criminal Appeal No. 64 of 2013.

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(Sheikh Ahmed Munshi Sheikh vs. State of Maharashtra, through its Police Station Officer, Kalamna, Police Station, Nagpur)

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Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's or directions and Registrar's orders. Orders.

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Mr. Anil Mardikar, Advocate with Mr.

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S.Ashirgade, Advocate for the applicant in both applications.

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Mr. K.M.Pathan, APP for respondent in both applications..

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CORAM: B.R.GAVAI & PRASANNA B. VARALE,JJ DATE : 19.3.2013

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The present applications have been taken out by the

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applicants/appellants, who have been convicted and sentenced for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code.

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19032013APPA No.81.2013 2

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The prosecution story is that on 9.12.2011 at about 8 to 9.45 p.m., both the accused poured kerosene on the body of deceased Uttamrao and set him on fire, due to which he died. It is the prosecution story that initially the deceased had illicit relations with accused no.1 and subsequently she left and started having illicit relations with accused no.2. It is the further case of the prosecution that on account of this, there was quarrel in the morning between the deceased and accused no.1. It is the further case of the prosecution that deceased was called by accused no.1 in the evening at about 8.00 p.m. and at that time, the incident, in which deceased died, took place. The learned trial Judge, on the basis of the evidence that was led before him, convicted the accused. The appeals preferred by the applicants have been admitted by this Court.

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Mr. Mardikar, the learned counsel submits that the dying declaration itself is doubtful inasmuch as in the beginning itself it is stated that the dying declaration was recorded between 2.35 to 3.30 p.m.. He submits that it is improbable that the person, who has recorded the dying declaration, would give as to how much time would be required in the beginning itself for recording dying declaration. He further submitted that the prosecution has also failed to establish the identity of the accused and, therefore, the appellants have very good case on merits.

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19032013APPA No.81.2013 3

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On the contrary, the learned APP appearing for the State submits that the learned trial Judge has given cogent reasons for establishing the identity of the accused. He further submitted that merely because there are some errors in the dying declaration, the veracity thereof could not be doubtful. He further submitted that the dying declaration which is recorded by the P.W. 5 is fully corroborated by the P.W.3. He submits that even oral dying declaration was given by the deceased to P.W.3 who is his son.

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At this stage, it may not be necessary for us to go into the veracity or otherwise of the dying declaration. Prima facie, we find that the prosecution has failed to establish the identity of the accused and further to establish their complicity with the crime in question. No doubt the deceased in his dying declaration has stated that he had illicit relations with Suman and it is the Suman and Ahmad Munshi who had poured kerosene on the body of Uttam and set him on fire. However, the prosecution has not examined a single witness to establish that accused no. 1 is the same Suman, who has been referred in the dying declaration of the deceased. Neither the prosecution has led any evidence to establish that accused no.2 – Shaikh Ahmad Munshi Shaikh is the same, who is referred in the dying declaration. The prosecution could have very well established the same by leading independent evidence that the accused no.1 was the lady who was having illicit relationship with

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19032013APPA No.81.2013 4

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deceased and who later on had changed it and started having illicit relationship with accused no.2. The prosecution could have very well examined the witnesses to establish that the deceased had inimical terms with the accused no.1 on this count but nothing that sort has been done by the prosecution. On the contrary, the complainant itself has stated that he is not aware about the illicit relationship of his father with accused no.1 Suman. Insofar as the contention of the learned APP that accused no.1 had signed as Suman when the charges were framed and only changed it to Sushila at the stage of recording the statement under section 313 of the Code of Criminal Procedure is concerned, at the cost of repetition we may state that even assuming that the prosecution has established that it was Suman who has poured kerosene on the body of deceased, prima facie, we are of the considered view that the prosecution has failed to establish that accused no.1 was the same Suman. In that view, we find that the applicants/ appellants have made out a case for suspension of sentence and for grant of bail.

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In the result, the applications are allowed. The sentences imposed upon the applicants/ appellants by the learned trial Judge shall stand suspended. The applicants/ appellants are directed to be released on bail on furnishing their bail bonds in the sum of Rs. 25,000/- each with one or two sureties in the like

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19032013APPA No.81.2013 5

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amount.

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We may state that the observations made hereinabove

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are for the limited purpose for considering the applications for bail and would not be considered at the state of hearing of the appeals.

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JUDGE JUDGE

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patle

Sushila Radhelal Radhe Gangbhoir @ Suman Shahu ( in Jail) v. State of Maharashtra Thr. Its Police Station Officer

Case brief

What is this about?

What did the court decide?

Sushila Radhelal Radhe Gangbhoir @ Suman Shahu ( in Jail) v. State of Maharashtra Thr. Its Police Station Officer

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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Coram

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