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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO.412 OF 2018
IN
CRIMINAL APPEAL NO.247 OF 2018
Samadhan Krishna @ Kisanrao Shinde
Age : 30 years, Occ.: Loundry Business,
R/o : Gaudwadi, Taluka Sangola,
District Solapur
(At present in Yerwada Central Prison, …. Applicant/
Pune) Ori. Accused no.1
Vs.
The State of Maharashtra …. Respondent
Mr. B.A. Lawate for the Applicant.
Mr. Y.M. Nakhwa, APP for State.
Coram : Smt. Sadhana S. Jadhav, J.
Date : 7th January 2019
P.C.:
1 Heard the respective counsel.
2 This is an application under Section 389 of Code of
Criminal Procedure. The applicant herein is convicted by the learned
Assistant Sessions Judge, Pandharpur vide judgment and order dated
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26th February 2018, for the offences punishable under Sections 498A
and 306 of the Indian Penal Code. For the offence punishable under
Section 498-A of Indian Penal Code, he is sentenced to suffer
rigorous imprisonment of one year and to pay a fine of Rs.10,000/-,
in default to suffer simple imprisonment for one month and for the
offence punishable under Section 306 of Indian Penal Code, he is
sentenced to suffer rigorous imprisonment of five years and to pay a
fine of Rs.10,000/-, in default to suffer simple imprisonment for one
month and both the sentences shall run concurrently.
3 The applicant herein happens to be the husband of the
deceased Nivedita. The deceased was married to her paternal-cousin
i.e. the mother of the applicant happened to be the real paternal aunt
of deceased Nivedita. They were married on 10 th May 2006. The
couple is blessed with two sons.
4 It is the case of the prosecution that Nivedita was being
harassed by her husband and mother-in-law on various counts, on
not fulfilling the domestic chores efficiently. She used to rush to her
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parents’ house and informed them about the same, but on every
occasion, the parents of Nivedita had a hope that there may be a
change in the behaviour of the applicant and his parents. There was
a demand of dowry from the applicant. Her husband i.e. the
applicant had also sold her Mangalsutra. On 29th June 2012,
Shantanu, the son of the applicant had informed his grandfather that
his mother Nivedita was assaulted by the applicant on head with an
axe. It appears that the applicant was suspecting her chastity and
therefore there was an assault on her. It appears that thereafter she
had been to her maternal house and refused to return and therefore
the applicant was constrained to issue notice for cohabitation.
5 The legal notice was replied by the deceased stating that
there was harassment and ill-treatment to her and therefore she
could not return. There was a written agreement between both the
parties that in future the applicant would not harass her. The said
agreement is marked as Article “A” in the records and proceedings.
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6 According to the prosecution, the applicant had not
mended his behaviour and finally on 6th March 2014 Nivedita had
immolated herself. She was admitted in the hospital. Her statement
was recorded. She had disclosed that she has sustained burn injury
while cooking on a stove and that she did not suspect anyone. She
succumbed to the burn injuries on 24th March 2014. The cause of
death is “due to septicaemic shock because of burn injuries”.
7 Learned counsel for the applicant has submitted that the
father of deceased-Nivedita had lodged F.I.R. after three months. He
had stated that he was not in a proper state of mind to lodge the
report.
8 Learned APP submits that in fact the deceased had a hope
that she would survive the burn injuries and therefore she had
disclosed that she has sustained accidental burn injuries. It is also
submitted by the learned APP that keeping in mind the relation
between the parties, no F.I.R. was lodged. However, these are the
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submissions and there is no evidence to that effect except the
statement of PW2 that he was not in a proper state of mind to lodge
the F.I.R.
9 Learned counsel for the applicant submits that in fact the
deceased-Nivedita did not like to stay in her matrimonial home and
therefore the applicant was constrained to issue notice of
cohabitation.
10 The learned Sessions Judge, Pandharpur, by the
judgment and order dated 26th February 2018 has been pleased to
convict the applicant for the offences punishable under Sections 306
and 498-A of Indian Penal Code and sentenced him to suffer rigorous
imprisonment for five years.
11 The applicant has been in custody since 26 th February
2018. He was in custody from 7 th June 2014 to 7th July 2014 as an
under trial prisoner.
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12 Learned counsel for the applicant submits that in fact the
Court has placed implicit reliance upon the substantive evidence of
PW-2. However, there is no material on record to indicate that the
deceased was harassed by the applicant to such an extent that she
would be constrained to cause injury to herself. In fact, it was
incumbent upon the prosecution to bring on record the dying
declaration (Exhibit 63). In paragraph 31 of the judgment, the
learned Sessions Judge has disbelieved the dying declaration on the
ground that it does not inspire confidence that she had sustained
injuries while cooking as she was totally burnt from backside and
from neck to chest from front side and therefore according to the
learned Sessions Judge, the nature of grave injuries to the tune of
75% burnt injuries would not be possible due to burst of stove.
13 Be that as it may the conviction of the applicant is for the
offence punishable under Section 306 of Indian Penal Code. The
dying declaration of the victim would falsify that she had committed
suicide due to harassment meted out to her by the applicant. In view
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of this, the applicant, who is in custody for more than ten months is
entitled to be enlarged on bail. Hence, the following order.
ORDER
i) The application is allowed and stands disposed of.
ii ) The substantive sentence imposed upon the applicant
vide judgment and order dated 26th February 2018 is hereby
suspended.
iii ) The applicant be enlarged on bail on furnishing P.R. bond
in the sum of Rs.50,000/- with one or more solvent sureties in the
like amount.
iv ) The applicant shall report to the Court of Sessions,
Pandharpur once in six months on the date assigned by the Sessions
Judge.
v) Upon failure to attend any two consecutive dates, the
Sessions Court, Pandharpur shall report the same to the High Court
and the prosecution would be at liberty to file an application seeking
cancellation of bail.
( Smt. Sadhana S. Jadhav, J)
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