1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3782 OF 2009 Bhaskar Lotan Wagh, Age-29 years, Occu-Service, R/o.Endave Hatti, Tq.Sakri, Dist. Dhule APPLICANT VERSUS The State of Maharashtra RESPONDENT Mr.B.R.Warma, learned counsel for the applicant. Mr.N.B.Patil, learned counsel for respondent State. (CORAM : A.V.POTDAR, J.) DATE : 18/12/2009 PER COURT : 1. By the present application, the applicant has approached this Court for his release on bail in connection with CR No.83/2009, registered in Nizampur Police Station for an offence punshable u/s. 302, 307, 504, 506 r/w. 34 of IPC. 2. Heard learned counsel appearing for the applicant followed by the submissions of learned APP appearing for State. This application is moved after the investigation is over in the present crime and the charge sheet came to be filed on 03/10/2009. 2 3. Considering the submissions across the bar, it appears that the present offence came to be registered on the basis of statement of victim Ujjwala Bapuji Wagh, who alleged that some quarrel took place between the victim and her family members in the earlier night of 03/07/2009 as she refused to go for working on the agricultural field and due to that quarrel took place between the victim and her mother in law and brother in law. It is alleged that in the early morning of 04/07/2009, at around 4.00 a.m. while the victim was in sleep, she smell of petrol and feel that someone has poured petrol on her person and all of sudden she wake up. At that time, it is the allegation in the complaint that the present applicant poured petrol on her person and set her on fire at the instigation of brother of applicant Raju who is also younger brother in law of victim and mother in law of the victim. After the cloths on the person of the victim caught with fire, she rushed outside the house, and the neighbourers extinguished the fire and took her to the hospital where later on she succumb to death. In this connection, the present applicant came to be arrested on the very day and since in the custody. 4. During the course of submissions across the bar, at the initial stage, plea of alibi is raised by the present applicant as according to him at the material time, he was on duty at Suzlon company which is at some distance from the present place and was working in the 2 nd shift. Because of this particular plea raised in the application, instructions were given after the present application is filed to the learned APP to find out whether in reality the applicant was on duty 3 in between 10.00 p.m. of the earlier day, till 4.30 a.m. of the next day, i.e. in the night between 03/07/2009 and 04/07/2009. Accordingly, report was submitted by the prosecutions stating that he was reported on duty on 03/07/2009 at about 10.00 p.m., but the nature of duty is as such that the applicant to take round in the jeep provided to the Security Guard and as such there is no fix place to remain on duty during the duty hours. In the premise, there is likelihood that while on duty, the applicant might have visited the residence where alleged incident took place. The fact is clear from this report that it is in the words “might have visited”, but this report is not sure whether the applicant was on duty or while on duty, left the duty during the period when he was seen by the other witnesses. 5. It is second limb of the submissions of learned counsel appearing for the applicant that even though initially it is stated in the first report on the basis of which the complaint is lodged that the present applicant set her on fire, the statement of witnesses recorded during the investigation to whom the victim has disclosed the omni- bus statement that the in laws, who were present at the residence, poured petrol on her and set her on fire. 6. Learned APP opposed the application on the ground that there are witnesses who have witnessed the incident after the victim came out of her residence and the fire which was extinguished by the neighbourers to whom she has disclosed as to how she has sustained the burn injuries. It is also urged that the plea of alibi raised by the 4 applicant can not be considered at this stage, but to be considered after the opportunity will be given to both the sides as one of the defence during the trial. 7. Considering these submissions across the bar and particularly on perusal of the post mortem notes which shows that the death of the victim caused due to sustaining of burn injuries then this death is a homicidal death and not an accidental death. 8. While considering the death of the victim is homicidal and it is because of strained relations between the family members of the victim as as per the statement of the neighbourers recorded, the victim was insisting to reside separately from her family to her husband. Admittedly at the time of alleged incident, her husband was not present at the residence, neither it is the case of either side that her husband was present. Now the question which needs consideration is that whether at the time of alleged incident, the present applicant was present on the spot or not. Even though the plea of alibi is raised, but in the statement of the witnesses recorded, who are the neighbourers, have pointed out the presence of the present applicant, immediately after the occurrence of the said incident. At the same time, there is variance between the disclosure statement made by the victim to the neighbourers and the disclosure statement made by the victim on which basis the FIR came to be registered. It is to be noted in this case that the other 2 accused who were arrayed as an accused in this crime, were released on bail. In 5 the premise, considering the variance of the immediate disclosure and the statement made on the basis of which complaint came to be registered, without entering into the merit, which statement is correct, it is the case where the applicant can release on bail with certain conditions. O R D E R 1. Application is allowed. 2. Applicant be released on bail on furnishing solvent surety in the sum of Rs.25,000/- and on executing PR bond in the like amount. 3. After released on bail, the applicant not to enter village Hatti till the trial against the applicant will over. 4. The applicant to give his address of residence to the Investigation Officer concerned and not to leave that place without previous permission in writing from the Investigation Officer concerned. 5. Application stands disposed of accordingly. (A.V.POTDAR, J.) khs/DEC 2009/cri.appl.3782-09