( 1 ) IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2912 OF 2010 1. Pralhad s/o Mahadu Gaikwad, R/o Kranti Nagar, Purna, Tq. Purna, District Parbhani. 2. Mahadu Satwaji Gaikwad, R/o as above. 3. Gawlanbai w/o Mahadu Gaikwad, R/o as above. APPLICANTS VERSUS The State of Maharashtra RESPONDENT (Police Station Inspector, through Police Station) .... Mr. S.R. Choukidar, advocate for the applicants. Mr. V.G. Shelke, APP for the respondent/State. .... [CORAM : V.R. KINGAONKAR, J.] [DATE : 1st September, 2010] PER COURT : 1. This is an application for bail under section 439 of the Criminal Procedure Code. 2. The applicants are husband, father-in-law and mother-in-law, respectively, of deceased Smt. Chayabai. The marriagebetween deceased Smt. Chayabai and applicant No. 1 ( 2 ) Pralhad was performed prior to about one (1) year. Allegedly, on 11th June, 2010 at about 3 p.m., she was involved in an incident of burning in the matrimonial home. When she was admitted in the civil hospital, her statement was recorded by the police. She narrated to the police officer that in the earlier night, the applicant No. 2 i.e. the father-in-law attempted to pull her by use of force and demanded sexual relationship with her. She resisted and declined to comply with his demand. He assaulted her by means of kicks and fists blows. He threatened her that if she would disclose the incident to anyone else, then she would be done to death. Still, however, when her husband and the mother-in-law returned home, she narrated the incident to them. They told her that he would not do so. On the next day, at about 3 p.m., the inlaws assaulted her, abused her and caught hold up her. Mother-in-law poured kerosene on her person and her husband set her ablaze by means of a lighted match-stick. On basis of such information given by injured Smt. Chayabai, the F.I.R. was registered and the applicants were arrested in connection with crime No. 108/2010, for offences punishable under section 302, 323, 504, 506 read with section 34 of the I.P. Code, after her death. It appears that she died of 45% burn injuries on 20th June, 2010 i.e. about 9 days of the ( 3 ) alleged incident. 3. The applicants submit that they have been falsely implicated in the alleged crime. They submit that the deceased never had alleged anything about the father-in-law in the past and that the story narrated in the F.I.R. is rather far-fetched. 4. Heard learned counsel for the applicants and learned A.P.P. I have gone through the investigation papers which were temporarily made available by the learned A.P.P. and have been returned to him immediately after hearing is over. 5. It is important to notice that the police did not arrange for recording of the dying declaration of injured Smt. Chayabai through Executive Magistrate or Special Judicial Magistrate or if any such dying declaration is recorded, the same is not included in the investigation papers which are made available during the course of hearing. The investigation papers would indicate that deceased Smt. Chayabai was hospitalized on the very same day. The medical papers do not show that she gave history of the burn injuries to implicate the applicants as the authors of alleged burn injuries caused ( 4 ) to her. It prima facie appears from statement of the father of deceased Smt. Chayabai, namely, Datta Gangaram Sonkamble that on the very same day i.e. 11th June, 2010, he received telephonic information to the effect that Smt. Chayabai was admitted in the civil hospital at Nanded due to burn injuries. He stated before the police that on the same day, he and his wife went to the hospital ward No.14 and noticed that Smt. Chaya was admitted due to burn injuries. Both of them inquired with daughter i.e. Smt. Chayabai. His statement before the police shows that she narrated to them that while she was cooking, her clothes were caught by fire and, therefore, she had received the burn injuries. The matter does not stop here. The Investigating Officer recorded statement of Ku. Sapna Vilas Kamble, aged about 7 years. Her police statement shows that deceased Smt. Chayabai had poured kerosene on her person and immolated herself while she and Ku. Sapna were the only two (2) inmates in the house. She further narrated to the police that while Smt. Chayabai was crying for help, three (3) labours got extinguished the fire and thereafter, the applicant No. 3 and others came to that spot and took her to the hospital. It appears from the investigation papers that the statements of the labours and the neighbour have not been immediately recorded and included ( 5 ) in the investigation papers. It further appears from the provisional post-mortem report that death of Smt. Chayabai was on account of superficial two deep burns caused to the extent of 45%. The investigation papers prima facie indicate that there is inconsistency between the oral statement of the eye witness Ku. Sapna and the purported dying declaration given before the police officer as well as the oral dying declaration narrated by father of deceased Smt. Chayabai. In view of such discrepancies, it prima facie appears that the dying declaration recorded by the police officer may be the immediate narration due to impulses and predetermination or may have been recorded when injured Smt. Chayabai had decided to implicate all the applicants. There is no reason for her father to support the applicants and give contradictory version about the nature of incident. In this view of the matter, prima facie, the applicants may not be guilty of the offence punishable with death or imprisonment for life. Consequently, their application is granted. They are directed to be released on bail on furnishing BBs in sum of Rs. 25,000/- (rupees twenty five thousand), each with one solvent surety, each to the satisfaction of the learned Sessions Judge and on condition that they shall not contact any of the prosecution witnesses and shall make no attempt to interfere ( 6 ) with the investigation process in any manner. They shall attend the concerned police station on each Saturday and Tuesday for period of four (4) weeks or till filing of chargesheet, whichever is earlier and shall cooperate with the Investigating Officer. They shall submit an undertaking before the Sessions Judge that they will not leave the limits of Purna Taluka till the investigation is completed. The application is accordingly disposed of. [V.R. KINGAONKAR] JUDGE NPJ/criapln2912-10