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Irfan Jabbar Shaikh vs The State Of Maharashtra on 24 October, 2018

902-APPA-322-2018.doc

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPLICATION NO.322 OF 2018
IN
CRIMINAL APPEAL NO.209 OF 2018

IRFAN JABBAR SHAIKH )…APPLICANT

V/s.

THE STATE OF MAHARASHTRA )…RESPONDENT

Mr.Vinod Kashid i/b. Mr.A.P.Waghmare, Advocate for the
Applicant.

Mr.S.V.Gavand, APP for the Respondent – State.

CORAM : A. M. BADAR, J.

DATE : 24th OCTOBER 2018

P.C. :

1 This is an application for suspension of sentence and

releasing the applicant/accused on bail during pendency of the

appeal filed by him. Though the applicant/accused was charged

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for offences punishable under Sections 302 and 498A read with

34 of the Indian Penal Code, the learned trial court was pleased to

convict him for offences punishable under Sections 304-II and

498A of the Indian Penal Code. The co-accused were acquitted of

offences alleged against them.

2 Heard the learned counsel appearing for the

applicant/accused. He argued that the deceased has given dying

declaration exonerating the applicant/accused on the date of the

incident in presence of her brother/First Informant as well as her

mother apart from the present applicant/accused. It is further

argued that case of the prosecution is based on evidence of PW2

Imran who appears to be 10 years old son of the

applicant/accused and deceased Meena. This witness had not

disclosed anything to his maternal uncle/First Informant PW1

Halim till filing of the First Information Report (FIR) by PW1

Halim. However, the FIR reveals that the same is based on

narration of facts by PW2 Imran to PW1 Halim. The learned

counsel further argued that this child witness PW2 Imran

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continued to stay with his maternal uncle PW1 Halim after the

incident till lodging the FIR on 18th June 2014.

3 The learned APP opposed the application by

contending that evidence of child witness PW2 Imran who is son

of the deceased and the applicant/accused, is trustworthy and

reliable. There is no reason for him to speak a lie against his own

father.

4 I have considered the submissions so advanced and

perused copies of deposition of prosecution witnesses including

the dying declaration of deceased Meena Shaikh.

5 Though the prosecution case is to the effect that in the

night intervening 14th June 2014 and 15th June 2014 at about 1.00

a.m., the applicant/accused had doused his wife Meena Shaikh

with kerosene and set her ablaze, the dying declaration of Meena

Shaikh recorded on 15th June 2014 by PW8 Supriya Bangade,

Police Sub-Inspector, goes to show that she sustained accidental

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burns because of flaring of stove. Evidence of PW7 Sameer Dhore

and PW8 Suprioya Bangade, Police Sub-Inspectors, shows that the

dying declaration of deceased Meena Shaikh Exhibit 49 was

recorded in presence of her brother PW1 Halim, her mother as

well as the applicant/accused.

6 Immediately after recording of dying declaration at

Exhibit 49, the spot was inspected by PW7 Sameer Dhore. Perusal

of the Spot panchnama goes to show that except the stove and

burnt matchstick, nothing incriminating was found on the spot.

PW2 Imran has stated that his father poured kerosene on person

of his mother Meena and set her ablaze. The Spot panchnama

recorded with promptitude does not show that there was kerosene

on the floor of one room house of the couple. On the contrary,

stove was found on the spot. No kerosene can was found lying on

the spot. PW2 Imran has stated that at the time of the incident, his

father had thrown two bottles towards his mother Meena. The

Spot panchnama is not reflecting this fact as no bottles were

found on the spot.

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7 During the course of investigation, the burnt pieces of

skin of deceased Meena as well as burnt clothes found on the spot

were seized and sent for chemical analysis. No residues of

kerosene were found on those articles.

8 In this view of the matter, considering the fact that the

applicant/accused is sentenced to suffer rigorous imprisonment

for 5 years and he has already undergone most of the part of the

sentence, his further detention in jail is not warranted. Therefore,

the order :

ORDER

i) The application is allowed.

ii) Substantive sentence of imprisonment imposed on the

applicant/accused is suspended and the applicant/accused is

directed to be released on bail on his executing P.R.Bond in

the sum of Rs.15,000/- and on furnishing surety in like

amount.

iii) The application is disposed off.

(A. M. BADAR, J.)

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