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2020 DIGILAW 675 (BOM)

Nilesh Suklal Bhoi v. State Of Maharashtra

2020-05-12

VIBHA KANKANWADI

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JUDGMENT 1. Present application has been filed by the original accused for suspension of sentence awarded to him in Sessions Case No.40/2018 by learned Additional Sessions Judge, Bhusawal, Dist. Jalgaon on 21.12.2019. 2. The applicant has been sentenced thus - (3) Accused Nilesh Suklal Bhoi is sentenced to suffer rigorous imprisonment for 7 (seven) years with fine of Rs.5,000/- (Rupees Five Thousand Only), in default to undergo simple imprisonment for 1 (one) month for the offence under section 306 of the Indian Penal Code. (4) Accused Nilesh Suklal Bhoi is sentenced to suffer simple imprisonment for 3 (three) years with fine of Rs.5,000/- (Rupees Five Thousand Only), in default to undergo simple imprisonment for 1 (one) month for the offence under Section 498-A of the Indian Penal Code. (5) Accused Nilesh Suklal Bhoi is sentenced to suffer simple imprisonment for 6 (six) months with fine of Rs.1,000/- (Rupees One Thousand Only), in default to undergo simple imprisonment for 7 (seven) days for the offence under Section 323 of the Indian Penal Code. (6) Substantive sentence for the offence under Sections 306, 498-A and 323 of the Indian Penal Code shall run concurrently. 3. Heard learned Advocate Mr. M.L. Wankhade for applicant and learned APP Mr. P.G. Borade for respondent-State. 4. It has been vehemently submitted on behalf of the applicant that the learned Trial Judge has not appreciated the evidence properly. Only on the basis of interested witnesses, who were the relatives of the deceased, the conviction has been awarded. The possibility of accidental death has not been ruled out by the prosecution, yet, the learned Trial Judge has held that deceased has committed suicide. PW 3 Sk. Abid Husain Sk. Mukhtar is the person who resides in the neighbourhood of the accused and he had seen the deceased coming out of her house in burning condition. Her sister-in-law had tried to save the deceased by pouring water on his person and this witness had also poured water. However, he has turned hostile. He was not independent witness, who could have stated as to what disclosure the deceased had made, immediately she came out of the house and the fire was extinguished. The other family members, who were present in the house of the accused, have not been examined. Therefore, the applicant has every hope of success in the appeal. He was not independent witness, who could have stated as to what disclosure the deceased had made, immediately she came out of the house and the fire was extinguished. The other family members, who were present in the house of the accused, have not been examined. Therefore, the applicant has every hope of success in the appeal. He was on bail throughout the trial and the sentence, that has been, awarded to him is short sentence. Hence, he be granted liberty by releasing him on bail during the pendency of the appeal. 5. The learned APP objected the application, on the ground, that a detailed Judgment has been passed giving all the reasons for conviction. The evidence adduced on behalf of the prosecution has been appreciated properly. Accused used to harass the deceased, who is his wife, by abusing her under the influence of liquor, suspecting her character and even disowning the paternity of their son. The situation was going on since many months, and therefore, ultimately she could not sustain the suspicious behaviour of the accused and even on the earlier night the accused had uttered such words under drunken condition, that made her sad and it appears, that she could not sustain and set herself to fire. All these aspects have been told by the prosecution witnesses and only the near relatives were the proper witnesses in such cases. When conviction is on merits, leniency need not be shown to the accused. 6. At the outset, the points which are in favour of the applicant are, that he was on bail throughout the trial. Secondly, small/short sentence has been awarded, and therefore, he can take benefit of the deceased in Kiran Kumar vs. State of M.P., (2001) 9 SCC 211 . The points, which have been raised to challenge the conviction, requires consideration. The prosecution has mainly examined the brother and mother of the deceased. As aforesaid, the neighbour has half way supported the prosecution. It appears that there was no suicide note left by the deceased and the case is based on oral Dying Declaration given to the relatives. It also appears that some other persons were in the house of the accused i.e. his relatives, and therefore, the point is then required to be considered, as to whether conviction can be based only on the basis of the testimony of the relatives of the deceased only. It also appears that some other persons were in the house of the accused i.e. his relatives, and therefore, the point is then required to be considered, as to whether conviction can be based only on the basis of the testimony of the relatives of the deceased only. Therefore, case is definitely made out to grant the liberty during the pendency of the appeal to the applicant. Hence, following order. ORDER 1. Application stands allowed. 2. The substantive sentence imposed on the applicant in Sessions Case No.40/2018 by learned Additional Sessions Judge, Bhusawal, Dist. Jalgaon dated 21.12.2019 for the offence punishable under Section 306, 498- A and 323 of the Indian Penal Code, is hereby suspended till the hearing and conclusion of the Criminal Appeal No.73/2020. 3. The applicant be released on P.R. and S.B. of Rs.15,000/-. 4 Applicant to attend the concerned Police Station, once in three month, till the disposal of appeal. 5. He shall not indulge in any criminal activity during the pendency of the appeal. 6. Application stands disposed of accordingly. 7. Bail before learned Additional Sessions Judge, Bhusawal.