1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION NO. 3438/2009 [HIWRAJ SOVINDA GEDAM VS. STATE OF MAHARASHTRA] ............................................................................................................. Office Notes, Office Memoranda of Coram,appearances, Court's orders Court's or Judge's order of directions and Registrar's orders .............................................................................................................. Mr.Anilkumar R. Ukey, Advocate, for the applicant. Mr. Sonak, APP, for Respondent. CORAM : P.D. KODE, J. DATE : DECEMBER 08, 2009. Heard. The applicant/accused arrested on 4th June, 2009 and charge sheeted by Duggipar Police Station Gondia in connection with Crime No. 44/09 of said Police Station for an offence under Section 302 of I.P.C, has prayed for bail. The said offence has been registered upon the first information report lodged on 3.6.2009 by Laxman Nagdeve, father-in-law of deceased Meenabai, who succumbed to death in consequence to the burn injuries suffered by her in an incident allegedly taken place on 23.05.2009. In short, it is the prosecution case that the deceased had married to the son of the first informant 2 about 11 years prior to the incident but no issue was born to her out of said wedlock. The applicant who is brother- in-law of first informant was on visiting terms to house of first informant and had developed illicit relationship with deceased since about 3 years prior to incident. It is main case of prosecution that in the night of 23.5.2009 the first informant was sleeping in a court -yard along with his wife, son and two grand daughters of his daughter. His son Nilkanth and deceased were sleeping in the kitchen. At about 9.30 p.m loud cries of Meenabai were heard. Thereon, first informant, his wife, son and grand daughters had been to Sandwadi and found Meenabai burning with applicant standing by her side. Upon query made by the first informant regarding reason behind herself burning, Meenabai had replied that applicant had quarreled with her and thereafter pouring kerosene had set her on fire. Thereon, the First informant had brought the applicant on road so also Meenabai also had been on the road. It is also prosecution case in F.I.R that the people including Sarpanch Ravindra Patle had been to the said place and thereon the said Sarpanch had enquired Meenabai as to who had burnt her and she had replied before the people gathered there that the applicant after pouring has set her on fire. Thereupon Sarpanch had recorded voice/said statement of Meenabai by means of mobile. Thereafter the victim Meenabai was taken to Hospital at Gondia and thereafter to Bhandara where she 3 succumbed to her burn injuries on 27.5.2009 at 8.15 p.m. The first informant thereafter had given a written application to the Police Station Duggipar on 3rd June, 2009 against the applicant and thereafter the offence in question was registered. After perusal of the case diary, it is difficult to accept submission of learned APP of accused being not entitled for bail in view of existence of ample material regarding his involvement in shape of dying declaration made by deceased to first informant and so also to Sarpanch and other two witnesses. It is difficult to accept the said submission after perusal of the diary, it is prima facie apparent that in spite of the incident having occurred on 23 May, 2009, the theory of deceased having made such a dying declaration, is forthcoming after inordinate delay i.e. on 3rd June, 2009 when first informant has lodged the report, and thereafter in shape of statements of the witnesses recorded during the course of investigation. The material in the case diary prima facie does not reveal any explanation for delay in lodging the F.I.R by first informant and the witnesses not reporting such a matter to the authorities. In addition to the aforesaid, the material in the case diary prima facie does not reveal any corroborative evidence being collected by the investigating agency in spite of prosecution claim of Sarpanch Ravindra Patle having recorded the dying declaration made by the deceased on his mobile phone. Though it reveals of 4 memory card being seized hardly any attempt has been made to collect the material from the same in a shape of script of the matters if any found recorded therein as claimed by the witnesses. Thus, prima facie considering character of the prosecution material and material in the diary failing to reveal the prosecution being able to collect any direct evidence other than purported oral dying declarations of deceased, the theory of existence of which is highly belated there appears substance in the submission of learned counsel for the applicant of this being a fit case for exercising discretion in favour of grant of bail by imposing suitable conditions as would be deemed proper by the Court as the prosecution material prima facie cannot be said to be creditable to reveal involvement of applicant in an offence necessitating denial of bail. In the premises aforesaid, the applicant/accused is directed to be released on bail in connection with the said crime subject to himself furnishing a P.R.Bond in the sum of Rs. 50,000/- with one or more solvent sureties for making up the said amount and further subject to the condition of that applicant shall (i) reside at the address mentioned in the application for bail and shall not change the same without the permission of the court; (ii) shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the fact of the case so as to dissuade him from disclosing such facts to the Court or to the Investigating 5 Officer or tamper with the prosecution evidence; (iii) shall not commit any offence while being on a bail granted by this order. Application stands disposed of. Hamdast allowed. JUDGE Rvjalit