1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 2033 OF 2010 Suraj Divekar Bansode ...Applicant Vs. The State of Maharashtra ...Respondent ----- Mr.M.S. Mohite for Applicant Mr. A.S. Shitole - APP for State ------ CORAM: V.M. KANADE J. DATED: 29TH APRIL, 2010 P.C. 1. This is an application for bail. 2. The Applicant was arrested on 23.1.2010 in connection with an offence which is registered under sections 302, 341, 323,504 r/w. 34 of the Indian Penal Code. The offence was initially registered with Solapur Taluka Police Station and later on it was transferred to Sangola Police Station. 3. The prosecution case in brief is that a complaint initially was lodged on 13.12.2009 at 9.00 a.m. by one Kiran Divakar Bansode, the real brother of the 1 Applicant, in which it was alleged that the present Applicant and three others had assaulted Kiran as well as the deceased Kavita Babar. A non-cognizable offence, therefore, was registered under sections 323, 506 r/w. 34 of the Indian Penal Code. The Applicant and three others were arrested at 10.30 a.m. under section 151 of the Cr.P.C. They were produced before the Learned Executive Magistrate, Sangola and released on bail on the same day after execution of bail bond. On the same day, Kavita Babar was examined by the Medical Officer, Rural Hospital at Sangola at 9.30 a.m. on 13.12.2009 and the certificate was issued by the doctor, in which it was stated that deceased received two simple injuries which were in the nature of abrasions. Thereafter, offence under sections 307, 341 r/w. 34 of the IPC came to be registered against the present Applicant vide C.R. No. 384 of 2009 on the basis of the dying declaration of the Kavita which was allegedly recorded by Police Head Constable of Solapur Taluka Police Station on 13.12.2009. In the said dying declaration, it was alleged that the Applicant assaulted her with fist blows and kick blows and when she fell down, kerosene was poured on her by Ratan and she was set on fire by Suraj. She had stated that Ratan extinguished the fire and she was admitted in the hospital wherein she succumbed to the injuries. Statements of, as many as, four eye 1 witnesses have been recorded and in the statements it had stated that the incident took place at 9.30 in the morning and after assaulting the deceased, kerosene was poured on her and she was set on fire. 4. The learned Counsel appearing on behalf of the Applicant submitted that there are several discrepancies in the statements of eye witnesses which were recorded and also in recording of timing when the actual incident took place. He submitted that the first FIR which was registered shows that the incident of simple assault had taken place on 9.30 a.m. in the morning on 13.12.2009 and accused were arrested and detained from 10.30 a.m. to 1.00 p.m. in the afternoon. The medical certificate also shows that the deceased received only two simple injuries in the form of abrasions. It is submitted that thereafter the deceased Kavita was admitted in the Hospital after she had received burn injury. 5. The learned Counsel submitted that that after the deceased Kavita was discharged from the hospital at 9.30 a.m. in the morning, she had poured kerosene on herself and set herself on fire. It is submitted that all her relatives have stated before the police that the incident had taken place at 9.00 a.m. It is submitted that there are clearly contradictions 1 between the first statement which is registered under section 323 of the IPC and second statement which is registered under section 307 of the IPC. 6. The learned APP for the State was directed to file an affidavit in reply. Accordingly, the reply is filed. I have perused the FIR and Postmortem notes as well as the first medical certificate issued by the Rural Hospital, Sangola. It is apparent that there are inherent contradictions in the statements of the prosecution witnesses. In my view, taking into consideration the inconsistencies, the Applicant has made out a case for grant of bail, particularly because, the first complaint reveals that the Applicant and others had allegedly assaulted the Kavita at 9.00 a.m. in the morning and, thereafter, they were immediately arrested and subsequently while the Applicant and others still in the custody, the deceased Kavita had sustained burn injury. It is also pertinent to note that all her relatives who have allegedly witnessed the said incident of the burning did not rescue the deceased nor they filed any police complaint. This creates a doubt about the statements. Further there is a discrepancy in the two dying declarations of the deceased which were recorded. In the first dying declaration she had taken the name of Ratan and Savita and in the second dying 1 declaration, she had mentioned the name of Savita and Rajeshree. 7. The Court is not expected to go through the statements of the witnesses and appreciate the material on record. At this stage, in my view, in the light of the prosecution case, the Court can arrive at prim facie conclusion on the basis of material which is placed on record. The investigation now has been completed and the charge sheet is already filed. Taking into consideration the aforesaid facts and circumstances mentioned herein above, in my view, the Applicant deserves to be released on bail. 8. The Applicant be released on bail on execution of P.R. Bond of Rs.5,000/- with one or two sureties in the like amount. He shall report to the concerned police station once in a month. 9. Application is disposed of. (V.M. KANADE J.)