1 Criminal Application No.1636/2011 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1636 OF 2011 Iqbal Usman Shete ... APPLICANT VERSUS The State of Maharashtra ... RESPONDENT ..... Mrs. A.S. Rasal, Advocate for the applicant Shri V.H. Dighe, A.P.P. for the respondent ..... CORAM : K.U. CHANDIWAL, J. DATE : 27th April, 2011 PER COURT : 1. Heard extensively. In Crime No.I-35/2011, for the offence punishable under Sections 498-A, 323, 504, 506, 306 of the Indian Penal Code, the accused/ applicant has urged for exercise of discretion in terms of Section 438 of the Criminal Procedure Code including to relax the earlier condition imposed as per order dated 28.3.2011, recorded in Criminal Application No.1323/2011. 2. With identical prayers, Application No.1323/2011 2 Criminal Application No.1636/2011 was moved in terms of Section 438 of the Criminal Procedure Code. On 28.3.2011, following order is passed : “1. Heard. On instructions, counsel withdraws the application. Permitted. Time to surrender extended till 31 st March 2011.” 3. Learned counsel submits, touching to the merits in the case, that the dying declaration of deceased, the alleged keep of the accused/ applicant, does not live conscious to the common sense as in the first dying declaration she has exonerated the accused/ applicant while in the second dying declaration, she implicates him giving his full name. Counsel reiterates, the accused/ applicant is falsely implicated and since he was ill, could not communicate his counsel in time and the directions to surrender up to 31/3/2011, remained to be adhered. 4. Learned counsel also insisted to peruse the panchanama of scene of event, which according to her, illustrate that burn pieces of the apparel of the deceased were seen scattered near the water tank, suggesting that, after flames and fumes she could have rushed to the water tank. 3 Criminal Application No.1636/2011 5. At this stage of the matter, in the light of directions dated 28.3.2011, basically the issue need not be reopened. If it is reopened and since learned counsel desires that this Court should opine on the two dying declarations, it is imperative to be so done. The events in the first dying declaration and the second dying declaration inform, that deceased was fed up with nagging and consequent harassment from the accused/ applicant and she immolated. It was a kindle in presence of the accused/ applicant she succumbed. The theory of accidental burn given by her in her first dying declaration is itself distorted in the spot panchanama, to which learned counsel has invited my attention. In the survey of above facts and more particularly, in the light of order dated 28.3.2011 in Application No.1323/2011, re-exercise of powers in terms of Section 438 of the Criminal Procedure Code is not maintainable. Application lacks merits, dismissed. Observations are prima facie. K.U. CHANDIWAL JUDGE fmpcri1636.11