1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 3300 OF 2010 Dipak s/o. Machindra Zuge, Age 25 yrs., Occu. Pan-shop, R/o. Aradgoan, Tq. Rahuri, Dist. Ahmednagar. ....Applicant. Versus The State of Maharashtra ....Respondent. Mrs. Sadhana Jadhav, Advocate for applicant. Mr. N.H. Borade, A.P.P. for respondent. CORAM: V. R. KINGAONKAR, J. DATED: 26th August, 2010. PER COURT : 1. This is an application for bail under section 439 of Cr.P.C. 2. The applicant is arrested and is charge-sheeted for an offence punishable under sections 302, 307, 498-A read with section 34 of I. P. Code in connection with Crime No. I-92/2010 registered at Rahuri Police Station. 3. It is alleged that about one year prior deceased Archana had 2 married with elder brother of the applicant. They were residing together with the applicant and the parents of the applicant. He used to suspect her as and when she was required to attend mobile phone call. He used to run Pan-Tapri (stall). On 22nd of March 2010 at about 9.00 a.m. deceased Archana was alone in the house when the applicant allegedly went there. He picked kerosene can and doused her with kerosene. He set her ablaze. She received about 80% of burn injuries and later on died in the hospital. 4. Heard learned counsel for the applicant and learned A.P.P. I have perused the investigation papers. 5. It is admitted fact that there is no eye witness account available about the incident. It is also undisputed that deceased Archana had not filed any complaint prior to the incident nor had any grievance against her husband. She was immediately rushed to the nursing home at Rahuri Factory. The medical opinion shows that at about 14.30 hours the Medical Officer certified that she was in a position to give her statement. Her statement was recorded immediately by Police Head Constable in presence of Medical Officer. In her first statement, she narrated that at about 9.30 a.m. she was involved in an accident due to bursting of stove and therefore, she would receive the burn injuries. It appears that the Medical Officer was present at the relevant time and her thumb impression was taken on the statement because she was unable to hold 3 pain due to burn injuries found on her fingers. It appears further that at about 8.45 p.m. on the same day the Medical Officer gave opinion to the effect that injured Smt. Archana was semi-conscious and unable to give her statement. According to the prosecution, her dying declaration was recorded, however, at about 10.00 p.m. by the Special Judicial Magistrate. She named the applicant as author of the burn injuries caused to her. On next day i.e. on 23rd March 2010 at about 1.30 p.m. she allegedly gave a detail dying declaration in which she made certain allegations against her husband and the in-laws about unlawful demand and illtreatment. 6. It is important to notice that during the course of investigation, the canister containing the kerosene or used for storage of kerosene was not recovered by the Investigating Officer. The incident seems to have occurred where the deceased used to cook the food. It appears that in her third dying declaration she categorically stated that the applicant had attempted to extinguish fire by placing a blanket on her person. Both her subsequent dying declarations do not show as to why the applicant was enraged at the relevant time and what preceded the incident which prompted him to take such a drastic step of pouring kerosene on her person and setting her ablaze. True, this is not the stage to analyse the evidence and to determine veracity of the dying declaration at the same time when there are multiple dying declarations. It is necessary to find out prima facie worth appearing from the information stated in such dying declarations and to examine whether 4 there is any corroboration available from the attending circumstances. Considered from this stand point of view, the applicant is entitled to seek liberty when the prima facie evidence shows that he may not be guilty of an offence punishable with death or imprisonment of life. 7. In the result, the application is allowed. The applicant is directed to be released on bail on furnishing P. B. and S. B. in the sum of Rs. 25,000/- (Rs. twenty five thousand). The bail bond to be furnished before the concerned Sessions Judge. The applicant shall also given an undertaking to the effect that he will not contact any of the prosecution witness during the period of trial and will make no attempt to tamper with the prosecution evidence. [ V. R. KINGAONKAR, J.] ssc/ca3300.10