1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3601 OF 2009 Indubai Prabhu Mapari, Age-55 years, Occu-Household, R/o.Tirthpuri, Ghansawangi, Tal.Ghansawangi, Dist.Jalna APPLICANT VERSUS The State of Maharashtra, Through Gondi Police Station, Dist. Jalna RESPONDENT Mr.J.R.Shah, learned counsel for applicant. Mr.N.R.Shaikh, learned APP for respondent State (CORAM : A.V.POTDAR, J.) DATE : 25/11/2009 PER COURT : 1. By the present application, the applicant has approached this Court for her release on bail in connection with CR No.128/2009, registered in Gondi Police Station, of Tal.Ghansawangi, Dist. Jalna in respect of the offence punishable u/s.302, 498-A of The IPC. 2. Heard learned counsel appearing for the applicant followed by the submissions of learned APP appearing for State. As the charge sheet is already filed in the present case, papers filed alongwith the 2 charge sheet placed before me for my perusal. 3. It can not be disputed that the offence was registered on the basis of alleged incident occurred at the residential premises of the applicant and the deceased/her daughter in law by name Ushabai Datta Mapari who sustained burn injuries in the early morning of 19/08/2009 and succumbed to death on 22/08/2009. Initially the ADR was registered, but later on after the injured Ushabai succumbed to death, an offence was registered u/s. 302 of IPC. 4. It is urged across the bar that the alleged incident took place on 19/08/2009 around 7.30 a.m. to 8.00 a.m.. Thereafter the victim was taken to the hospital i.e. in the Civil Hospital, Jalna around 9.00 a.m. where her dying declaration was recorded. At that time she is in 100% burn condition. In the said dying declaration, according to her, she herself poured kerosene and set herself on fire, admitted to be the case of suicidal death at the hands of daughter in law of the applicant. According to applicant, immediately within two hours thereafter, another dying declaration was recorded by the Executive Magistrate wherein she has arrayed the present applicant as an accused is the person, who has poured kerosene on her and set her on fire. In the premise, according to learned counsel appearing for applicant, considering the fact that the applicant is a female and as there is variance between the two dying declaration recorded between a very short span, benefit of provisions of section 437 of Cr.P.C. be given to applicant and she be released on bail as now the 3 investigation is over. These submissions are vehemently opposed by the learned APP appearing for State and he drawn my attention towards the statement of the witnesses recorded during the investigation, who have carried the injured from the place to the hospital which include the disclosure by the deceased to her husband, who is the son of the applicant. 5. Considering these submissions across the bar and on perusal of the papers of investigation discloses that after the alleged incident occurred in the early hours of 19/08/2009, on hearing the shouts of victim as she sustained the burn injuries, she came outside. At that time, her husband Datta came there. Alongwith the neighbourers, Datta took the victim to the hospital, and on her way, it was the disclosure that the mother of Datta, the present applicant is the person who has poured kerosene on her and set her on fire and she sustained the burn injuries. If the scenario of the incident to be considered in its chronological manner, then this disclosure by the victim to the son of the applicant can be termed as her oral dying declaration which was recorded first immediately after the occurrence of the incident. In the premise, even though it is tried to urge that there is variance in the dying declaration recorded after she was admitted in the hospital, and within 2 hours recorded by the Executive Magistrate, the fact remain as to why the real son of the applicant is giving statement against her, which can not be so likely and easily brushed out and discarded at this juncture. Apart from it, it is a death like custodial death as at the time of death only the 4 victim and the applicant were present at the residential premises, then as the victim was in the custody of the applicant, it is for the victim to explain the injuries as per the provisions of section 106 of The Indian Evidence Act. At least at this stage, it can not be said that this burden stands rebutted at the hands of the applicant, thus no case made out to enlarge the applicant on bail even by using the discretion u/s. 437 of Cr.P.C. considering the direct nexus between the injuries sustained by the deceased and the role played by the applicant. Hence application stands rejected. (A.V.POTDAR, J.) khs/NOV 2009/cri-appl-3601-09