Cri.Appln.No. 49/11 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 49 OF 2011 IN CRIMINAL APPEAL NO. 2 OF 2011 Sharad @ Sharadchandra s/o. Nimba Patil, Age 31 yrs., Occu. At present Nil (Being in Jail), R/o. Mangrul, Tq. Amalner, Dist. Jalgaon. ....Applicant. Versus The State of Maharashtra & Anr. ....Respondents. Mr. R.R. Mantri, Advocate for applicant. Mr. K.G. Patil, APP for respondents. CORAM : NARESH H. PATIL & T. V. NALAWADE, JJ. DATED : 30th March, 2011. ORAL ORDER : 1. Heard learned counsel for parties. 2. Applicant was convicted by Additional Sessions Judge, Amalner in Sessions Case No. 21/2010 on 16th December 2010 for the offence punishable under section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and to pay fine of Rs. 5000/- (Rupees five thousand), in default to suffer simple imprisonment of six months. The applicant filed Criminal Appeal bearing No. 2/2011 which was admitted by this Court on 12th January 2011. The present application is filed by Cri.Appln.No. 49/11 2 the applicant for releasing him on bail. 3. In short, the prosecution case is that on 5th May 2005 deceased Rekha was married with applicant. She had a son aged about 2 years. Applicant and his deceased wife were residing separately from their in- laws. It is alleged that on 19th February 2010 while deceased Rekha was cooking, she got accidental burns and was immediately taken to Rural Hospital Amalner and thereafter to Civil Hospital, Dhule. She was further taken to Chaitanya Hospital, Dhule and further treatment was given to her. Rekha suffered 73% burn injuries. She survived for a month. On 19th March 2010 Rekha died. On 19.2.2010 two dying declarations, Exhs. 55 and 25, were recorded by police and Executive Magistrate, respectively. On 20.2.2009 Executive Magistrate recorded one more dying declaration which is at Exh. 23. The deceased was taken for further treatment to KEM Hospital at Mumbai. Her statement was recorded by PSI of Agripada Police Station which is at Exh. 30. Further statements of deceased were recorded which are at Exhs. 47 and 21. The cause of death in post mortem report is shown to be septicemia, bilateral lobar pneumonia and acute tubular necrosis as a complication of 70-75% superficial to deep infected thermal burns. 4. The learned counsel for the applicant submitted that there are inconsistent statements of dying declarations of deceased recorded by Cri.Appln.No. 49/11 3 the prosecution. The first two dying declarations allegedly recorded on 19.2.2010 wherein deceased Rekha stated that she suffered burn injuries due to her coming into contact with gas-stove. In respect of other statements, the learned counsel submitted that the prosecution deliberately involved the applicant as accused in the crime and the prosecution falsely made out the case that the applicant poured kerosene on the person of deceased, due to which she suffered burn injuries and died. The counsel further submitted that the prosecution has not been fair towards applicant. Considering the prosecution evidence and the conduct of the applicant, it would be safely gathered that deceased died due to accident and the applicant is no way concerned or involved in the circumstance resulting in the death of Rekha. The learned counsel has placed reliance on following reported judgment :- (i) Mangalabai Yashanna Shekapure Vs. State of Maharashtra, 2007 (2) Bom. C. R. (Cri.) 35, (ii) Shankar Keshav Madane Vs. State of Maharashtra, 2005 (1) Bom. C. R. (Cri.) 510, (iii) Sanjay Radhesham Ruhatiya Vs. State of Maharaashtra, 2000 (1) Mh.L.J. 118, and (iv) Balasaheb Abasaheb Farate Vs. State of Maharashtra, 1999 (1) Mh.L.J. 324. Cri.Appln.No. 49/11 4 5. The counsel submitted that during trial the applicant did not apply for bail and therefore, he was in jail during the trial. Applicant has three year old child, who is required to be looked after. The counsel therefore prays to release the applicant on bail. 6. The learned APP submitted that it has come on record that on 19th March 2010 Rekha was unconscious. The learned APP placed reliance on the evidence of P.W. Nos. 1 and 2. It is further submitted that residues of kerosene were found on the clothes of deceased in the report of Chemical Analyser, which falsifies defence of the accused. In dying declarations recorded after 20th of March 2010, the deceased clearly blames the applicant for causing burn injuries. The learned APP therefore prayed that as the applicant is involved in a serious crime, his bail application should be rejected. 7. We have considered the submissions advanced by the learned counsel for the respective parties and perused the judgments cited before us by the learned counsel for applicant. At this stage, reappreciation of evidence is not necessary. It is true that several statements/ dying declarations of deceased are on record. In the dying declarations recorded on 19.2.2010 by the police and Executive Magistrate, the deceased did not blame the accused. On the next day onwards the statements of dying declarations of deceased clearly involve Cri.Appln.No. 49/11 5 the applicant for the circumstances which caused death of Rekha. The report of chemical analyser shows that kerosene residues were found on the clothes of the deceased. In written statement filed by the applicant under section 313 of Criminal Procedure Code the circumstances resulting cause of death of deceased were not explained. It has come on record that the applicant and the deceased were staying together for a long time. 8. This Court is hearing few remaining Jail appeals of the year 2009. 9. Considering all these aspects, we are not inclined to release the applicant on bail. Hence, the application stands rejected. [ T. V. NALAWADE, J.] [ NARESH H. PATIL, J.] ssc/ca49.11