1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, APPELLATE SIDE NAGPUR BENCH, NAGPUR CRIMINAL APPLICATION (BA) NO. 317 OF 2011 ( Pravin Manohar Dhabekar Vs. State of Mah. PSO PS Hudkeshwar) ........................................................................................................................................................................ Office Notes, Office Memoranda of Coram, appearances, Court orders or directions Court's or Judge's Order and Registrar's orders ........................................................................................................................................................................ Shri A. K. Bhangde Adv for applicant. Shri N. R. Rode APP for non applicant/State. CORAM: M. N. GILANI J. DATED: 22nd JULY, 2011. . The applicant has filed this application for releasing him on bail against whom offence bearing Crime No. 173 of 2010 under Sections 307, 143, 147, 148, 149 and 302 of Indian Penal Code is registered at Police Station Hudkeshwar, Nagpur. The deceased Nandu @ Nandkishor Chandrakant Dahare was residing in Jambu Dip Nagar Slum Area Nagpur. The accused persons are his neighbourers. There used to be quarrel between the family of Nandkishor (since deceased) and the family of the accused. On 02.12.2010 at 5 a.m. when the deceased was standing in front of the hut, the applicant came there and by saying that he (deceased) was playing mischief, poured kerosene oil on 2 his person and set him on fire. Hearing his screams neighbourers gathered and they put out fire. He was carried to Medical College Hospital where his statement was recorded by A. S. I. Rathod. On that basis, offence came to be registered against the applicant. After about one and half months of this incident, the deceased succumbed to the burn injuries. Postmortem notes point out that death was due to septicemia due to burn injuries. Along with the applicant four other accused were arrested in connection with this offence. Learned Additional Sessions Judge released them on bail. However, the application for bail presented by the applicant being Misc. Criminal Application 431 of 2011, was rejected. It was canvassed before him that on the ground of parity the applicant is entitled to be released on bail as other co-accused have been released on bail. Learned Additional Sessions Judge refuted this contention by observing that: "Upon hearing, the learned counsel and on perusal of charge sheet, it appears that there appears name of the applicant in the statement of the complainant which is now treated as dying declaration. The said statement shows a specific role to the applicant as he poured 3 the kerosene upon the complainant and setting him on fire. Though the postmortem notes of deceased Nandkishor shows that he died after one and half month of the incidence and probable cause of death reflects as septicemia due to burn injury for which the applicant could not be held responsible however, the specific role assigned to the applicant in the statement of the complainant is much enough for considering the gravity of the offence. The submission regarding the false implication on the pretext of previous enmity will be the part of the evidence cannot be considered at this stage. Though the other co accused have been released by this Court, they have released on ground that no specific role was assigned to them and they were women." Similar contention has been now raised by the learned counsel for the applicant. In the first dying declaration recorded by Shri Rathod, a specific role has been attributed to the applicant. When deceased was standing in front of his house the applicant 4 approached him and poured kerosene oil on his person. In the subsequent dying declaration recorded by the Executive Magistrate, the deceased improved upon his version and along with the applicant he involved the other family members of the accused. In that light of the matter the learned Additional Sessions Judge was justified in distinguishing the case of the present applicant with that of the other co-accused. The contention of the learned counsel for the applicant that there is great variance between two dying declarations, which cannot be entertained at this stage. Fact remains that in first dying declaration the specific role has been attributed to the applicant and in the subsequent dying declaration also the name of applicant appears. It is not the case that in the subsequent dying declaration the name of the present applicant was omitted. My attention was drawn to the requisition (Tahrir) sent by Duty Officer, Police Station Hudkeshwar to the Medical Officer, Medical College Nagpur. This was a query put to the Medical Officer whether the applicant was in a fit condition to give statement. In that, history was narrated by saying that the deceased had set himself on fire and his statement is required to be recorded. It is not known from where this Duty Officer got such information. Certainly, this would not negative the contents in the 5 dying declaration which have been recorded after consulting the Medical Officer. The other contention of the learned counsel for the applicant is that, the deceased died after one and half months from the incident. The finding in the postmortem notes that death was due to septicemia due to burn injuries point out that there is nexus between the death and the burn injuries. Therefore, time gap between the date of incident and the date of death would not dilute the charge of homicidal death. For the foregoing reasons I do not find any merit in the application. Application is rejected. JUDGE svk 6