1 BA-1572-11.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION Mhi CRIMINAL APPLICATION NO. 1572 OF 2011 Sou. Bhavaramma Shivrudraya Hiremath ... Applicant vs. State of Maharashtra ... Respondent Mr. Sachin Pawar i/b. Sachin Thombare,Advocate, for the applicant. Mrs. R.V.Newton, APP for the respondent - State. CORAM: J.H.BHATIA,J. DATE : 29th November, 2011. P.C. 1. The applicant seeks to be released on bail in Crime No.389 of 2010 registered with Bhosari Police Station under Sections 498A and 302 of IPC. 2. According to the prosecution, deceased Ashwini was married to the son of the present applicant about four months before her death. After marriage, the present applicant and her husband were pressurizing Ashwini to bring amount of Rs.2 lakh from her parents and for that purpose, they used to abuse and assault. On 27.9.2010 at 9 p.m., also they had abused and threatened her on that ground. On 28.9.2010, she suffered burn injuries and was taken to hospital. Her husband reported at the hospital that she had suffered burn injuries due to bursting of stove. Her statement was recorded by lady PSI S.R.Surve. In the statement, she had 2 BA-1572-11.sxw narrated the above story and had also stated that at about 9.50 a.m. when she was alone in the kitchen, her father-in-law and mother-in-law had come from behind and closed the door and mother-in-law had poured kerosene and set her ablaze and thereafter mother-in-law and father-in-law both had opened the door and run away. She was burning and came out shouting for help. Some people from the locality came and extinguished the fire. On 7.10.2010, Ashwini died because of the burn injuries. 3. The applicant, who is mother-in-law of the deceased, claims to be innocent and prays for bail. According to her, she was not present at the house when the incident occurred. She had gone to her duty and for this purpose, she has also produced a certificate to the effect that on that day at about 10.16 a.m. by punching her card, she had reported for duty as a sweeper at Dr. D.Y.Patil Hospital and Research Centre. It is contended that she could not be present at the house at the time of the incident. It needs to be examined whether it was impossible for her to be present at her house at the time of the incident in view of the distance between the place of incident and the place of her duty. However, the spot panchnama provides corroboration to the prosecution story that she was burnt by pouring kerosene and not by burst of the stove. Even the statements of all the witnesses who had come on the spot after the incident clearly show that kerosene 3 BA-1572-11.sxw was found spread in the kitchen and then kitchen was cleaned by Ambika,who is another daughter-in-law of the applicant. The spot panchnama also shows that gas connection was available and if it is so, the use of kerosene stove does not appear to be probable. 4. The learned Counsel for the applicant contends that the applicant is serious and in critical condition and, therefore, on medical ground she should be granted bail. However, medical papers reveal that she required some gynaec operation and was admitted in Sassoon General Hospital on 4.10.2011. It indicated that she was operated and treated and the discharge card shows that she was discharged on 4.11.2011 after she was cured. Therefore, there is nothing to show that her condition is critical. Taking into consideration the gravity of the offence, I am not inclined to grant bail to the applicant. 5. Before closing, it is necessary to note that the incident took place on 28.9.2010. Ashwini died on 7.10.2010. For ten days she was alive. However, the Investigating Officer did not bother to call any Executive Magistrate to get her statement recorded. The Supreme Court and several High Courts have repeatedly emphasized the importance of getting dying declaration recorded by a Magistrate. However, not only in the present case but in a number of cases it has come to the 4 BA-1572-11.sxw notice of this Court that police officers do not make any attempt to call any Magistrate for the purpose of recording dying declaration, even though sufficient time is available and the injured person is in position to make statement. While law does not prohibit the police officers from recording statement of injured person in critical condition and such statement may be used as dying declaration, importance of recording dying declaration by an independent person like a Magistrate cannot be overemphasized. Non recording of dying declaration by a Magistrate, when sufficient time is available for that, may sometime create suspicion about fair investigation of the case and may result in miscarriage of justice. It is necessary that the police officers should be made aware about the responsibility and importance of getting dying declaration of injured persons, particularly in such burning cases, by some Magistrate. The application stands rejected. 6. The trial Court shall expedite the trial of the case and dispose of the same as early as possible, and in any case, by the end of February, 2012. 7. Copy of this order be forwarded to the Director General of Police for giving necessary instructions to all the police officers in the State to scrupulously 5 BA-1572-11.sxw follow the directions about recording of dying declarations by Magistrates. (J.H.BHATIA,J.)