1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. CRIMINAL APPLICATION NO. 1983/2010 ( Raju Mohan Rathod .vs. State of Maharashtra through PSO P.S. Janefal, Dist. Buldhana ) ------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's orders or directions Court's or Judge's orders. and Registrar's orders Mr. S.U. Nemade, Advocate for Applicant. Mr. J.B. Jaiswal, APP for Respondent. .......... CORAM : P.D. KODE, J. DATED : JANUARY 27, 2011 Heard. The applicant/accused charge sheeted by Janefal Police Station in connection with Crime No. 34/2010 registered with the said Police Station for offence under Section 302 of the Indian Penal Code, has prayed for bail. The learned APP has opposed prayer for bail on the count of there being sufficient material showing involvement of the applicant in committing murder of Shila with whom he had an affair. It is urged that the said material is in the shape of her dying declaration recorded by Police at Hospital and so also oral dying declaration made to two brothers, mother and sister. The submission of the learned counsel for the applicant that so called dying declaration of the deceased 2 recorded by the Police Officer itself reveals that the applicant had no motive for commission of the crime and on the contrary the victim was having a grudge against him cannot be said to be altogether devoid of merit. Such a prima facie inference arises as prima facie first part of the said dying declaration reveals that deceased a married woman having two daughters and separated from husband was staying at her matrimonial place and was having affair with the applicant for one year. The same further reveals that the applicant was pressing her for marriage but she was refusing to marry him. The said recitals speaks a volume but the dilation about the same is avoided in view of this order is passed at interim stage. The further part of the dying declaration reveals that on the said day Nanmukh ceremony for applicant i.e. programme of bridegroom taking a bath was fixed. The material part of the purported dying declaration reveals that on the said day, the applicant had been to the house of the victim at about 4 p.m. and had taken her in the field at the rear side of the house and had administered her Sharbat in a plastic glass. She claimed to have become unconscious due to the same and having fallen in the field. It reveals that her brother Ananda Mahadeo Wathe had been to the said place and had taken her to the hospital. The perusal of the said dying declaration also prima facie supports the submission of the learned counsel for the applicant that at that time deceased had made any dying declaration to her brother Ananda Mahadeo Wathe. The perusal of the diary also supports the submission of the learned counsel for the applicant 3 that the said dying declaration is neither recorded by the Executive Magistrate, nor the same is in question and answer form and nor the said dying declaration contains the endorsement of the doctor of the deceased then being in conscious and in a position to make coherent and rational statement. The diary reveals that the deceased had expired on 31.5.2010. The diary does not reveal any material regarding reason for which the dying declaration of deceased was not recorded through the Executive Magistrate. Apart from the same, the perusal of the scene of offence panchanama also supports the submission of the learned counsel for the applicant that no Sharbat bottle or any glass being found at the place at which the deceased is said to have fallen. Besides the aforesaid, the learned APP was also not able to pinpoint any other material in shape of statement of independent person of having seen the applicant nearby the spot of offence on the relevant date and time. Thus considering such character of prosecution evidence and the alleged oral dying declaration made to her brothers about which also the material had surfaced not on the day of the incident but on the second day, the dying declaration itself revealing that the marriage of the applicant was already fixed , the applicant had made out a case for releasing him on bail. Hence the order:- The applicant is directed to be released on bail in connection with said crime upon furnishing P.R. Bond in the sum of Rs.1,00,000/- (Rs. One Lac) with two solvent sureties in like amount subject to the conditions that applicant - 4 (i) shall attend the Janefal Police Station in between 11.00 am and 2.00 pm every day for a period of 15 days and, thereafter, on every Monday until further orders, (ii) shall stay at the address mentioned in the application and shall not leave the same without the permission of the trial court, (iii) shall not indulge in any activity of tampering prosecution evidence and/or indulge in any activity hampering the progress of the trial, (iv) shall not commit any offence while on bail. The application stands disposed of. JUDGE halwai