Bombay High Court
Mithun Tanaji More vs The State Of Maharashtra on 18 November, 2019
Author: P. N. Deshmukh
Bench: P. N. Deshmukh
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
INTERIM APPLICATION NO. 1 OF 2019
IN
CRIMINAL APPEAL NO. 845 OF 2019
Mithun Tanaji More .. Applicant
Versus
The State of Maharashtra .. Respondents
...
Mr. Harshad Nimbalkar a/w Mr. Satyam Nimbalkar, i/by
Hrishikesh Kamble for the Applicant.
Mr. V. V. Gangurde, APP for the Respondent /State.
CORAM: P. N. DESHMUKH, J.
DATED : 18th NOVEMBER, 2019.
P.C:-
1. This application is for suspension of sentence and for
grant of bail by original accused no. 1 who came to be convicted
by the learned trial Court for the offence punishable under
sections 498-A and under Section 304 B of Indian Penal Code and
is sentenced to suffer RI for 10 years for the offence punishable
under section 304- B of Indian Penal Code and for the offence
punishable under section 498A of Indian Penal Copde, applicant
is convicted for 2 years with fine of Rs. 7,000/- in default of
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payment of fine to suffer SI for 3 months.
2. Learned Counsel for applicant submitted that though
incident has occurred on 14th March 2012, report is belatedly
lodged on 30th March 2012 and almost about 13 days after the
death of deceased Mayuri, who succumbed to burn injuries on
17th March 2012. It is contended that as such applicant is
falsely involved by filing after thought belated report.
3. Another ground put-forth is, with reference as to
inconsistency in the oral as well as written Dying Declaration and
that in the entire evidence of witnesses on record, who are related
to deceased in their capacity as her brother, brother's wife, etc.
there is nothing to show that applicant had provided harassment
or cruelty to deceased in connection with any demand for dowry
and had thus contended that in the absence of any such evidence ,
no ingredients of Section 304B of Indian Penal Code are in fact
established. By referring to material evidence on record, it is also
submitted that in the same set of evidence, though applicant is
convicted, other co accused are acquitted by trial Court. It is
therefore prayed that application be allowed, as pending trial
applicant was on bail.
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4. Learned APP has strongly opposed application and
has mainly submitted on the conduct of applicant contending that
after the incident of deceased pouring kerosene on her person and
set her ablaze, applicant took no steps to save her till the fire had
increased. It is therefore, contended that this case of applicant
itself establish his involvement in the present crime and further
submitted that as there is ample evidence establishing applicant's
involvement in the present crime, application be rejected.
5. In the background of submissions advanced as
aforesaid, it appears to be case of prosecution that marriage of
deceased Mayuri was performed with the applicant in March 2007
and after she started cohabiting with applicant about one and half
years before lodging of report, her father-in-law, brother-in-law
demanded Rs. 15,000/- to her parents, out of which Rs. 12,000/-
were paid. According to case of prosecution, allegations against
applicant is that inspite of his marriage with deceased, he was
never sleeping with her as his father was not allowing him to
accompany his wife. However, due to intervention of family
members, this issue was resolved. Further case of prosecution
would reveal that after Mayuri was pregnant, original accused no.
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3 who is brother of applicant demanded one tola of gold. While
allegations against applicant is that he alongwith co accused were
abusing deceased and that too accused who are acquitted were
provoking applicant which facts were stated by deceased to her
parents. It is in background of above facts, further case of
prosecution is that on 14th March 2012, phone call was received
by complainant's wife about Mayuri's admission in hospital for
sustaining burn injuries where she succumbed to same on 17 th
March 2012. Accordingly, report is lodged on 30th March 2012.
6. In the background of above submissions as well as
case of prosecution, ingredients of Section 304B of Indian Penal
Code, evidence are required to be evaluated to satisfy whether
offence punishable under section 304B of Indian Penal Code can
be made out. It is also to be seen if other evidence on record is
convincing to be relied upon.
7. So far as alleged dowry demand by applicant and
providing ill-treatment, harassment and cruelty to deceased
immediately prior to setting her person on fire as in the case of
prosecution is concerned, evidence of P.W.8 Aparna Mayur
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Tamboli, who has recorded Dying Declaration and contents
thereof do not establish that deceased committed act of setting
her person on fire any time, immediately prior to she was
provided with ill-treatment, cruelty or harassment either by her
husband or relatives in connection with any demand of dowry, as
from the Dying Declaration Exhibit 96 what has come on record is
that applicant was insisting deceased to go to her house hence she
poured kerosene on her person and set herself on fire.
8. Apart from above fact, it is material to note that
according to evidence of complainant, brother of deceased on his
visiting her in hospital, deceased orally informed him that
applicant under influence of liquor instigated her to die. His
evidence is totally silent on any cruelty or harassment to deceased
in connection with dowry immediately prior to her commit
suicide.
9. One aspect which further heads consideration is
contents of Dying Declaration Exhibit 96, which reveals that
requisition letter was issued by police to P.W.8, Nayab Tahasildar,
where in incident is alleged to have occurred on 14 th March 2012
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accidentally, due to bursting of stove in which deceased sustained
90% burn injuries. Above contents of Dying Declaration are
found duly corroborated from the evidence of P.W. 10 Police
Inspector Chandrakant Mane, the Investigating Officer, who has
admitted that inspite of incident dated 14 th March 2012 of which
First Information Report is lodged on 30 th March 2012. Some
statement of deceased was recorded by one ASI Pawar.
Admittedly no such statement is forming part of charge-sheet nor
ASI Pawar is examined. In that view of matter, there appears
much substance when it is suggested to Investigating Officer that
deceased sustained burn injuries accidentally, though said
suggestion is denied by Investigating Officer stating that he do not
remember if any such statement is recorded by ASI Pawar. Apart
for the reasons as aforesaid, application is liable to be allowed,
more particularly when submissions of learned APP does not
appear to be convincing and as Investigating Officer has admitted
that applicant has sustained burn injuries on his palm and face
which prima facie appears to be sustained by him deflaming fire
which fact has also come in Dying Declaration that after the fire
took place and had increased, applicant attempted to save his
wife.
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10. In the background of facts as aforesaid, sentence is
liable to be suspended pending appeal as per order below.
ORDER
1. Applicant shall be released on bail on his executing P. R. Bond in the sum of Rs. 25,000/- with one surety in the like amount.
2. While on bail, applicant shall mark his presence with Sahakarnagar Police Station, Pune quarterly on the first day of each such month, pending appeal.
3. Application is disposed off as allowed.
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