Applicant convicted of murder sought bail suspension pending appeal. Court found no fatal variance in dying declarations, declined to reappreciate evidence, but ordered appendant appeal hearing expedited noting five-year jail term.
Criminal Application dismissed; hearing of Appeal expedited.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.833 OF 2013 IN
CRIMINAL APPEAL NO. 669 OF 2013
Mahendra alias Tinku Suresh Barve
.... Applicant
vs
The State of Maharashtra
.... Respondent
Mr. Harshad Suryawanshi i/by Mr. Wajid Shaikh for the Applicant. Mr. V. B. Konde-Deshmukh, APP for the State.
CORAM: P. V. HARDAS &
REVATI MOHITE DERE, JJ.
DATE : August 06, 2013 P. C.
The applicant, by this application, seeks suspension of the substantive sentence of imprisonment and his enlargement on bail pending the decision of the Appeal.
2 The applicant stands convicted for an offence punishable under Section 302 of the Indian Penal Code on the allegation that the applicant had poured kerosene on Sonam on 8.9.2008 at about 10.30 pm and had set her ablaze. The prosecution principally relied upon the ocular testimony of PW
1- Babybai and PW 4-Nivrutti as well as the two dying declarations at Exhibits 24 and 21 recorded by PW 3 – Ashok Gandhe, ASI and PW 5 –
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Ayubkhan, a special judicial Magistrate. The trial Court placed implicit reliance on the testimony of PW 1-Baby and PW-4-Nivrutti as well as relied upon two dying declarations and convicted the applicant.
3 The evidence of PW 1 – Baby clearly establishes that the accused had come to the house of PW 1 – Baby and there was a quarrel between the applicant and the victim Sonam. According to PW 1 – Baby thereafter she heard the cries for help of the victim as the victim had sustained burns. The evidence of PW 4-Nivrutti is to the extent that on hearing the cries, he has gone to the house of PW 1- Baby. The two dying declarations at Exhibits 24 and 21 implicate the present applicant as the person who had poured kerosene on Sonam and set her ablaze. According to the two dying declarations, the applicant had fled from the house of PW 1- Baby by latching the door from outside.
4 The learned counsel for the applicant has urged before us that the trial Court was in error in placing implicit reliance on the testimony of PW 1 -Baby as well as PW 4 -Nivrutti. It is also urged before us that on account of variance in the recitals of the two dying declarations at Exhibits 21 and 24, the trial Court ought to have rejected the two dying declarations. It is further urged before us that it is inconceivable that the victim could have
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given a long narration of the incident, particularly after sustaining the burns.
5 The learned APP has supported the findings recorded by the trial Court and has urged for rejection of the bail application.
6 The trial Court has placed implicit reliance on the two dying declarations at Exhibits 21 and 24. We have perused the two dying declarations. We do not find the variance to be of such a magnitude as would entail the rejection of both the dying declarations. The submissions advanced before us by the learned counsel for the applicant pertain to reappreciation of evidence which cannot be done at this stage. Suffice it to say that the trial Court has placed implicit reliance on the evidence of PW 1 – Baby and PW 4 – Nivrutti and the two dying declarations and has accordingly convicted the applicant. Additionally, we find that the applicant was not on bail during trial. However, since the applicant is in jail for the last five years, we direct that the hearing of the Appeal be expedited.
7 Criminal Application is accordingly dismissed with the aforesaid direction.
(REVATI MOHITE DERE, J.) (P. V. HARDAS, J.)
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3 issues framed by the court
Whether suspicion surrounding ocular testimony and dying declarations warrants suspension of substantive sentence and bail pending appeal decision.
Whether variance between two dying declarations necessitates rejection of such evidence.
Whether the trial court's implicit reliance on evidence justifies the convictions despite applicant's lack of bail during trial.
1 provisions across 1 enactments
Mahendra alias Tinku Suresh Barve
The State of Maharashtra
P. V. Hardas
Revati Mohite Dere
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
