{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.2179 OF 2010 1. Baliram s/o Rupchand Jadhav Age-45 years, Occ-Labour R/o Jogeshwari (Tanda), Jamkhed Tq-Ambad, Dist-Jalna 2. Smt.Shantabai w/o Baliram Jadhav Age-40 years, Occ-Labour R/o As above 3. Smt.Kamalabai w/o Ramnath Jadhav Age-38 years, Occ-Labour R/o As above APPLICANTS VERSUS The State of Maharashtra Through in-charge police station, Ambad, Tq-Ambad, Dist-Jalna RESPONDENT ....... Mr. V.D.Sapkal, Advocate for the applicants Mr. S.G.Nandedkar, APP for respondent State ....... [CORAM : A.V.POTDAR, J.] DATE: 1st July 2010 PER COURT: 1. By the present criminal application, the applicants {2} have approached this Court for their release on bail in connection with CR No.14/2010 registered with Ambad police station, Dist- Jalna, as all the applicants are arrested on 21.01.2010. It is informed that after completion of the investigation, charge sheet was filed before JMFC, Ambad on 29.03.2010 and after passing the necessary committal order, the trial is also committed to the Court of Sessions, Jalna in Sessions Case No.83/2010. 2. After all the attempts of the applicant, to seek bail before the lower court, are failed, they are before this Court seeking regular bail. 3. Heard learned counsel for the applicants and learned APP. Perused the papers of investigation. 4. From perusal of the medical papers it is clear that the death of deceased Shankar Rathod caused due to sustaining burn injuries and thus, it is clear that his death is a homicidal one. It appears that the said offence came to be registered on the basis of alleged dying declaration of the deceased recorded by one police head constable. Perusal of the said dying declaration discloses that on 19th January 2010, he had been to the house of applicant No.2, to inquire as to why she has asserted filthy comments in respect of his wife hence all the applicants were annoyed and at 9.00 a.m. when he was alone in his house, all the applicants entered in his house, poured kerosene on his person and set him on fire. {3} Admittedly, in the dying declaration, the applicant has not disclosed that other than the applicants anyone was there. 5. Papers of the investigation disclose that the deceased was taken for medial treatment at Aurangabad. Initially, he was taken to Dr.Bembde's hospital where he could not be get admitted as his relatives could not arrange the funds, which fact is not supported by any document. Subsequently, he was taken to Dr.Dahifode's hospital at 5.00 p.m. Medical papers indicate that when the deceased was admitted in the hospital, he was unconscious, thereafter he regained conscious and again he became unconscious and ultimately succumbed to the burn injuries in the early hours of 20th January 2010. Accordingly, Kranti chwok police station was informed. On the said intimation it is endorsed by the police that the said intimation is noted in station diary at serial No.15 and time of receipt of the said is recorded as 4.35 a.m. Accordingly an ADR was registered at ADR No.5/2010 and thereafter further investigation was handed over the police head constable. Learned counsel for the applicant drawn my attention to the dying declaration recorded by the same police officer with the remarks that the patient was conscious at 10.10 p.m. on 19.01.2010. This entry on the dying declaration does not get support from the medical papers where the deceased was treated as indoor patient. Apart from it, had the dying declaration is recorded at 10.10 p.m. on 19.01.2010, which discloses cognizable non bailable offence, then the immediate action should have been {4} to register the offence against the concerned persons. However, remarks about registration of the offence on the basis of the dying declaration find place at 18.06 hours on 20th January 2010. Thus, this creates doubt about the genuineness of the dying declaration. Hence, the entire papers of investigation require to be considered from this angle. It also appears that during the investigation statement of alleged eyewitness Sundaraba was recorded. However, perusal of the dying declaration nowhere discloses that other than the applicants, anybody was present at the spot. In the premise, the investigation carried out as well as the dying declaration does not inspire confidence. In the premise and considering the fact that the applicants are in jail since January 2010 and now the investigation is over, case is made out to enlarge the applicants on bail. 6. In the result, the application is allowed. The applicants be released on bail on their furnishing surety in the sum of Rs. 15,000/- each and on executing PR bonds in the alike amount, if not required in any other offence. The applicants are directed not to contact or tamper with the prosecution witnesses. It is clarified that the above observations are prima facie observations based on the papers of investigation and the learned Sessions Judge need not be influenced with the same. [A.V.POTDAR, J.] drp/B10/criapln2179-10