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Mithun Tanaji More vs The State Of Maharashtra on 18 November, 2019

1/7 15-IA-1-19 in apeal 845-19.doc

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 Sectionsection 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
Yugandhara patil

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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.
Yugandhara patil

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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 Sectionsection 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.
Yugandhara patil

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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.

(P. N. DESHMUKH, J.)

Yugandhara patil

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