1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 330 OF 2011 ( Onkar Lalsingh Rathod Vs. State of Maharashtra PSO PS Ghatanji) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri Apurva De Adv for applicant. Shri S. M. Bhagde APP for non applicant/State. CORAM: M. N. GILANI J. DATED: 25th JULY, 2011. . This Court (Coram: P. D. KODE J.) on 28.02.2011 permitted the learned counsel for the applicant to withdraw the bail application no. 88 of 2011 with liberty to file fresh bail application in the event the trial is not commenced by the end of June 2011. Since the trial has not commenced yet, this application has been preferred. Offence bearing Crime No. 87 of 2010 is registered at Police Station Ghatanji for offence punishable under Section 498-A, 302 read with Section 34 of Indian Penal Code. On 14.07.2010 incident occurred. Kalpana was in her matrimonial home. The time was 7.30 p.m. She 2 sustained 100% burns and, therefore, was admitted to Civil Hospital Yavatmal. On the next day i.e. on 15.07.2010 in the noon her statement was recorded by the Executive Magistrate. She stated that "on 14.07.2010 in the evening her husband poured kerosene oil on her person and set her on fire". The statement bears endorsement of the Medical Officer that patient was conscious and oriented throughout the recording of dying declaration. On 19.07.2010 Kalpana succumbed to the burn injuries. Learned counsel for the applicant brought to my notice the requisition dated 15.07.2010 addressed by A. S. I. Police Station Ghatanji to the Medical Officer seeking his permission to record the dying declaration of the deceased. On 15.07.2010 at about 21.00 p.m. Medical Officer opined that the patient was not fit for recording of dying declaration. Learned counsel for the applicant states that the time of making endorsement is 2 p.m. and not 9 p.m. According to him, when patient was not fit to make statement how could it be possible that she had become fit on 15.07.2010 in between 12.30 to 1.05 p.m. (noon). Even if the endorsement of the 3 Medical Officer is read as 2 p.m., it does not coincide with the time mentioned in the dying declaration or even if it is taken as 9 p.m., still it does not coincide with the time in the dying declaration. After recording of the dying declaration was completed it might have happened that patient had become unfit for giving statement. Medical case papers or bead head ticket can clarify and of-course it is a matter which has to be dealt with by the trial Court. Learned counsel for the applicant pointed out that in a report forwarded to the Medical Officer with request to conduct postmortem examination, A. S. I. mentioned in the remarks column the cause of death as, on 14.07.10 the deceased poured kerosene on her person and set herself on fire. It is not known from where he got such information. The fact remains that, on the basis of this the dying declaration recorded in presence of Medical Officer by the Executive Magistrate cannot be negatived. The primafacie involvement of the applicant for the offence under Section 302 Indian Penal Code having been made out, discretion of releasing him on bail cannot be 4 exercised. Learned counsel for the applicant made available to this Court the copy of the Roznama in Sessions Trial No. 20 of 2011. It reveals that on 25.02.11 charge has been framed. It is not understood why the case is not being fixed for recording of evidence. Learned Sessions Judge shall look into the matter and report the progress of the case to the Registrar of this Court. Application is rejected. JUDGE svk 5 From the date of taking charge i.e. from 17.03.2011 till 06.05.2011 His Lordship Hon'ble Shri Justice M.N. Gilani was sitting at High Court Bombay.