Bombay High Court
Bhagyashree Ramanand Bhole vs The State Of Maharashtra on 14 September, 2021
Bench: V.K. Jadhav, Shrikant D. Kulkarni
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
12 CRIMINAL APPLICATION NO.1330 OF 2021
IN CRIMINAL APPEAL/145/2021
BHAGYASHREE RAMANAND BHOLE
VERSUS
THE STATE OF MAHARASHTRA
...
Advocate for Applicant : Mr Shailendra S. Gangakhedkar
APP for Respondent-State: Mr Rajendra V. Dasalkar
CORAM : V.K. JADHAV AND
SHRIKANT D. KULKARNI, JJ.
DATE : 14th SEPTEMBER, 2021
PER COURT :
1. Pending Criminal Appeal No. 145 of 2021 preferred against the
judgment and order passed by the learned Additional Sessions Judge,
Nanded dated 10.02.2021 in Sessions case No.90/2016 convicting the
applicant/original accused No. 2 for having committed the offence
punishable under section 302 read with section 34 of I.P.C. and
sentencing her to suffer R.I. for life and pay fine of Rs.5,000/-, in default to
suffer S.I. for six months, the applicant/original accused No.2 has
preferred this application for suspension of substantive part of the
sentence and for bail.
2. The learned counsel for the applicant/accused No. 2 submits
that the prosecution case rests upon two dying declarations Exh.59 and
Exh. 85 respectively. The learned counsel submits that Exh.85 came to be
recorded by PW 8 P.S.I. Mr G.J. Kshirsagar and Exh. 59 came to be
recorded by Special Judicial Magistrate PW 4 - Mohd. Iftekhar Mohiuddin.
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The learned counsel submits that there is mark inconsistency between
these two dying declarations. The learned counsel submits that it appears
from the allegations made in both dying declarations, so also, from the
evidence of PW 1, who claims himself to be the witness rushed to the spot
immediately after the incident, the said incident has taken place without
any premeditation as of sudden in the heat of anger. The learned counsel
submits that even though, the applicant/original accused No. 2 was
allegedly present at the time of incident, however, the entire role was
ascribed to accused No.1. The learned counsel submits that it is not clear
from the prosecution evidence that the applicant/accused No.2 had
knowledge that the co-accused was having the knife in his possession and
he was likely to use the said knife in the quarrel, which has taken place as
of sudden. The learned counsel submits that even it appears from the
prosecution evidence that there was no intention to commit murder as
such. The deceased Parmeshwar died 12 days after the incident and the
cause of death is septicaemia in an operated case of stab injury to
abdomen. The learned counsel submits that the applicant/original accused
No.2 was on bail during trial.
3. The learned A.P.P. submits that there were illicit sexual
relations between the applicants and even on one previous occasion, the
deceased along with some other residents of the area seen co-accused
Dhananjay when he had allegedly entered in the house of applicant/
accused No. 2. The learned A.P.P. submits that since then, the applicant
had a grudge against the deceased Parmeshwar and in consequence
thereof, the incident had taken place. Both the dying declarations are
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consistent on material part. PW 1 - Dhammapal Sheshrao Kamble
happened to be the real brother of the deceased Parmeshwar rushed to
the spot after the incident and had witnessed that both the accused were
dragging the deceased. The learned A.P.P. submits that the
applicant/accused No.2 may not be released on bail by suspending the
substantive part of sentence.
4. It appears that the prosecution case mainly rests upon the two
dying declarations. So far as the dying declaration Exh.59 recorded by the
Special Judicial Magistrate, no specific act was ascribed to the
applicant/accused No.2 as against the dying declaration Exh. 85 recorded
by PW 8 PSI G.J. Kshirsagar. Apart from this, it appears from the
prosecution evidence that the incident had taken place without any
premeditation as of sudden. We do not find any evidence suggesting that
the present applicant/original accused No.2 had knowledge that the co-
accused was having knife in his possession and he was likely to use the
said knife in the incident which allegedly taken place as of sudden without
any premeditation. It further appears that the co-accused Dhananjay as of
sudden took out the knife and inflicted blows of the knife on the person of
the deceased. Furthermore, co-accused had pushed deceased in such a
manner that the deceased dashed against the standing pole and
sustained injuries on his head. Furthermore, the cause of death is
septicaemia in an operated case of stab injury to abdomen and the
applicant/accused No. 2 was on bail during the trial. Thus, considering the
entire aspect of the case, we are inclined to release the applicant/accused
No. 2 on bail by suspending the substantive part of the sentence. Hence,
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the following order :-
ORDER
(I) The criminal application is hereby allowed. (II) Pending the Criminal Appeal No. 145/2021 preferred against the Judgment and order of conviction passed by the Additional Sessions Judge, Nanded dated 10.02.2021 in Sessions Case No. 90/2016, substantive part of the sentence is hereby suspended and till then, the applicant/original accused No. 2 - Bhagyashri Ramanand Bhole be released on bail on furnishing personal bond of Rs. 20,000/- (Rupees Twenty Thousand) with one solvent surety of the like amount. (III) The criminal application is accordingly disposed of. [ SHRIKANT D. KULKARNI, J. ] [ V.K. JADHAV, J. ] mta ::: Uploaded on - 16/09/2021 ::: Downloaded on - 17/09/2021 00:25:13 :::