1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4522 OF 2009 Mr.Sarfaraz Moiddin Pathan ...Applicant vs. The State of Maharashtra ...Respondent Mr.Hakim Salim A.R. for the Applicant. Mrs.M.R. Tidake, APP for the State. CORAM : V.M. KANADE, J. DATED : NOVEMBER 25, 2009 P.C. :- 1 Heard Counsel for the applicant and APP for the State. 2 The applicant has been arrested in connection with an offence which is registered vide C.R.No.108/2009 by the Wanworie Police Station, Pune, under Section 302 read with 34 of the IPC. 2 3 This is an unusual case where it is alleged that the wife and her parents and her brothers poured keorsene on her husband and set him on fire. The incident, in question, took place on 5.4.2009. The deceased Unus Shaikh expired on 12th April, 2009 and the present complaint has been filed on 19th April, 2009 by the father of the deceased. In the first statement of the deceased which was recorded by the Sub-Inspector of Police, Wanoworie on 6th April, 2009, he has stated that there was previous dispute between the husband and wife and in a fit of range, he lighted the stove and as a result of the fire from the stove, he received burn injuries on his face, stomach. He further stated that he did not know how the said incident had taken place. Thereafter, his dying declaration was also recorded in which the different version has been given by the deceased and in the dying declaration dated 7th April, 2009, the deceased has stated that on 5th April, 2009 in the evening when he came back, his wife demanded salary which he had received on the 3 earlier day and he informed his wife that he has given the said money to a person whom he hold some amount, as a result of that there was altercation between the husband and wife. After sometime, his mother-in-law came there and informed him that his wife had taken home two children and was going to commit suicide on the railway track. He, therefore, immediately went near the railway station and after sometime when he came back, he found his wife was sitting in the house along with her mother, brother and father. They caught hold of him, poured kerosene on him and set him on fire and the fire was extinguished by them and they took him in the hospital. 4 Counsel for the applicant submitted that there was inconsistency and contradiction in the statement which was recorded initially by the Police Sub-Inspector and dying declaration which was subsequently recorded on 7h April, 2009. He submitted that the applicant had taken the deceased 4 to the hospital. He further submitted that it was unlikely that the wife and in-law would commit the said act and kill the husband. He further submitted that there was delay of almost seven days in filing the complaint and that the deceased died on 12th April, 2009 and the complaint was lodged on 19th April, 2009. There is some substance in the submission made by the applicant. There is some discrepancy in the two dying declarations. 5 In view of the discrepancy in the two dying declarations, it is difficult to rely on both the dying declarations as held by the Apex Court in the case of Khushal Rao v. State of Bombay (AIR 1958 SC 22), the Apex Court has held that in such circumstances, no reliance can be placed on both the dying declarations and it is not open for the court to rely on one dying declaration and discard the other. 6 Though at this stage, the Court is not 5 supposed to rely on the evidence. The court has to consider whether prima facie case is made out by the applicant for grant of bail, particularly, when the trial is not likely to commence for quite sometime. The charge sheet now has been filed and the investigation is over. The other two accused also have been released on bail by the Sessions Court. The applicant is in custody since 19th April, 2009. 7 Under the circumstances, the applicant be released on bail in the sum of Rs.5000/- with one or two sureties in the like amount. The applicant shall report to the concerned police station once in a month. 8 The application is disposed of. (V.M. KANADE, J.)