1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION (BA) NO.218/2011 (Sachin s/o Uttamrao Banait .Vs. State of Maharashtra thro. PSO PS Hingna, District Nagpur) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. J.M. Gandhi, Advocate for Applicant. Mr. S.M. Bhagade, APP for Non-Applicant. .......... CORAM: M.N. GILANI, J. DATE: 08.06.2011. The applicant has moved this Court under Section 439 of the Code of Criminal Procedure, seeking his release on bail. The applicant is an accused in Crime No. 168/2010, registered with Police Station Hingna, District Nagpur. Wife of the applicant by name Jaya Banait had sustained more than 90% burn on 30.09.2010, in a matrimonial home at M.I.D.C., Hingna and due to that she died on 06.10.2010. It is the prosecution case that on 30.09.2010, at about 08-30 to 09-00 p.m. while deceased was cooking food, the accused started quarreling with him. He had consumed liquor. He was insisting upon the deceased to bring money from her mother. It was also alleged that he was suspecting her 2 character by saying that he was not the father of their child. He slapped her and fell her down and poured kerosene oil on her person. Then he set her on fire. The deceased ran out of the house. The landlord by name Ghongle, putout the fire by wrapping her with blanket. The neighbours carried her to the hospital. On 01.10.2010 her statement was recorded by police which was treated as F.I.R. On 01.10.2010 at 03-10 a.m. the Executive Magistrate recorded her dying declaration. In that, also she alleged that the accused poured kerosene on her person and set her ablaze. The neighbours helped her in putting out fire. The applicant moved bail application before the learned Additional Sessions Judge, Nagpur. On 24.01.2011, the learned Additional Sessions Judge, Nagpur considering the gravity and the nature of offence rejected the bail application. Therefore, the jurisdiction of this Court is invoked to seek release of the accused/applicant on bail. Shri J.M. Gandhi, learned counsel for the applicant, tried to find fault with the investigation. According to him, the contents in the dying declaration ex-facie appear doubtful. Although the accused had sustained burn injuries and was admitted in the hospital, there is no mention of this fact in any of the dying declarations made by the deceased. In one of the dying declarations there appear endorsement of the Medical Officer that while dying declaration was recorded she was mentally fit to give statement. He placed reliance on the decision in case of Bhaurao Abaji Dhandre Vs. State of Maharashtra 2011 3 ALL MR(Cri) 1730. In that case, the learned Single Judge of this Court found fault with the dying declaration recorded in the case. The husband had sustained 43% burns which was not explained. In that light of the matter, the accused/applicant was released on bail. The another decision relied upon is in case of Yad Ram & ors. Vs. State reported in II (1992) CCR 1643 of the Delhi High Court. Perusal of the charge-sheet shows that after the incident deceased was admitted to HOPE Hospital. The hospital authority intimated to the police since it was medico legal case. The police were informed that the lady by name Jaya Banait was admitted in their hospital with 90% burn. She had not properly disclosed the cause of burn; she had stated that she sustained burn because of kerosene oil. It was further stated that the patient was fully oriented to give statement. Then her statement was recorded by the police in which she had stated that on 13.09.2010 while she was making food her husband was intoxicated and picked up quarrel with her. The husband of the deceased was saying that he is not father of the son and then slapped her. He then poured kerosene on her person and set her ablaze. The landlord put out fire by wrapping her with a blanket. Firstly, offence under Section 307 of the IPC was registered since the deceased was alive at that time. At page 11 of the charge-sheet there is a copy of request letter addressed to the Medical Officer to certify about the fitness of the patient to give statement. In the margin, the Medical Officer made endorsement to the effect that patient was 4 fit for statement. At page 20 there is dying declaration recorded by the Executive Magistrate. Prior to that the Executive Magistrate had addressed the communication to the Medical Officer inquiring about the fitness of the deceased to give statement. Below the writing of the Executive Magistrate the Doctor certified that patient was fit to give statement. Immediately thereafter the Executive Magistrate recorded the statement. In statement she again reiterated that she was doused with kerosene oil and was set ablaze by her husband. Prima facie, involvement of the accused in setting his wife on fire is made out. At this stage exercise of probing as to how the accused had sustained burns cannot be undertaken. The decision relied upon by the counsel for the applicant in case of Bhaurao Abaji Dhandre Vs. State of Maharashtra (supra), in my view, does not advance his case. There cannot be straitjacket formula of releasing the accused on bail whenever it is shown that he had sustained burns while putting out fire. Considering nature and gravity of the offence discretion of releasing the accused cannot be exercised. Application is rejected. JUDGE Nikhare