1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 4343 OF 2008 1. Smt. Tarabai Kashinath Mahale 2. Shri Karbhari Murlidhar Mahale .... Applicants. V/s The State of Maharashtra ...... Respondent. ------ Mr. Sandeep K. Shinde for the applicants. Mrs. M.H. Mhatre, APP for the State. ----- ALONGWITH CRIMINAL APPLICATION NO.711 OF 2008 IN CRIMINAL APPLICATION NO.4343 OF 2008 Shri Sunil Uttam Khapare ...... Applicant/ Intervener V/s Smt. Taramati Kasninath Mahale and anr. ......Applicants. And The State of Maharashtra ...... Respondent. ----- Mr. Suresh Sabrad for the applicant/Intervener. Mrs. M.H. Mharte, APP for the State. ----- CORAM : V.M. KANADE, J. DATE : 12th January, 2009 2 P.C.: 1. Heard the learned Counsel for the applicants, the learned APP for the State and the learned Counsel for the Intervener. 2. Applicant No.1 is the mother- in-law and applicant No.2 is the brother of the father- in-law of the deceased Shobha Pralhad Mahale who, according to the prosecution, was set ablaze after kerosene was poured on her by the applicants and by her husband. Three accused are already released on bail. 3. The learned Counsel appearing on behalf of the applicants has invited my attention to the two dying declarations recored by the Police. It is submitted that there is discrepancy in these two dying declarations. In the first dying declaration, it is stated that the husband of the deceased and mother- in-law and the brother of the father- in- law poured kerosene and set her on fire. The second dying declaration, however, is silent on this aspect and it is not mentioned under what circumstances she had received the 3 burn injuries. The learned Counsel for the applicants invited my attention to the statement of the neighbours who have stated that they have seen the smoke coming out of the bathroom of the toilet of the applicants' house and they heard shouts of deceased Shobha. Thereafter, husband of the deceased came there, opened the toilet, poured water on the deceased and extinguished the fire. It is submitted that in view of the discrepancy in two dying declarations and the version given by the eye witnesses to the said incident, the applicants have made out a case for grant of bail. 4. Mr. Sabrad, the learned Counsel appearing on behalf of the intervener - brother of the deceased invited my attention to the statement of the brother of the deceased which is recorded by the police. He submitted that the deceased had narrated the sequence of events to the brother in which she had categorically stated that the applicants and others were responsible for her death. He submitted that in the first dying declaration also this fact had been mentioned by the deceased and in the second dying declaration only concise statement was recorded and, therefore, this fact of the 4 applicants pouring kerosene and setting her ablaze has not appeared in the second dying declaration. He submitted that the deceased was harassed by the applicants and had, thereafter, murdered her in gruesome manner and, therefore, no case was made out for grant of bail. 5. It is a very well settled position in law that if there is a discrepancy in two dying declarations recorded by the police then both the dying declarations are liable to be discarded. In the present case, the deceased has stated that the husband poured kerosene and had set her on fire. Thereafter, in the second paragraph of the said dying declaration, she stated that her husband and her mother- in- law had committed the said act and, thereafter, she states that the applicant No.2 who was present there also poured kerosene and set her on fire. Apart from discrepancy in the first dying declaration, the second dying declaration is silent on this aspect. There is no reference in the second dying declaration to the said fact. Apart from the discrepancy in the two dying declarations, the other two witnesses also gave different version about the manner in which the said 5 incident had taken place. Even the statement of the brother of the deceased gave different version altogether. He has stated that the deceased informed him that there was a quarrel between the accused and the deceased and that the accused had decided at night to kill the deceased and pursuant to the said plan, they had poured kerosene on her and set her ablaze in the morning. This version also is not reflected in the dying declaration of the deceased. In view of the conflicting versions which are found in the two dying declarations and statements of the witnesses and the statement of the brother of the deceased, in my view, prima facie case is made out by the applicants for grant of bail. 6. Applicants, therefore, be released on bail in the sum of Rs 5000/- with one or two sureties in the like amount. Applicants shall report to the concerned Police Station as and when called for. Applicants shall not tamper with the evidence or threaten the witnesses. If such an attempt is made, the bail which is granted to the applicants shall be cancelled on application being made by the intervener or by the prosecution. 6 7. It is clarified that the observations made by this Court while granting bail are observations of prima facie nature and the Trial Court shall not be influenced by these observations which are made only for the purpose of deciding the question as to whether the applicants are entitled to get bail or not. The Trial Court after all the evidence is adduced by the prosecution shall consider the case on its own merits and in accordance with law. 8. Application is disposed of. In view of this the Criminal Application No.711 of 2008 filed by the intervener does not survive and the same is also disposed of accordingly. (V.M. KANADE, J.)